American Experiment (104 page)

The dragnet covered even the universities. When in Chapel Hill a chemistry professor remarked that he would vote for the 1856 Republican ticket if it should be run in North Carolina, there was a public uproar. The Raleigh
Standard
called for his ilk to be “silenced or…be driven out,” students burned him in effigy, and he was hounded out of the university. The silencing of any independent critical voice, the absence of any of the “isms” sweeping the North, and the tendency of southern schools to become institutions of propaganda constituted crucial ways, in Clement Eaton’s words, in which the “Southern people set up an intellectual blockade, a
cordon sanitaire.
”

By the time that slavery boiled up again as a national issue in the mid-1850s, the intellectual effort to reconcile slavery and liberty had become so extremist and even gymnastic that a simple and straightforward defense
of slavery seemed more useful to southern elites. This defense took many forms. Some arguments for slavery were essentially debating points: that slavery was sanctioned in the Bible; that the founding fathers had owned slaves; that most of the abuse of blacks took place in southern cities, at the hands of owners who had never before had slaves. Other proslavery arguments were essentially biological: black men were, innately inferior and even helpless, and needed white masters to look out for them. In a famous address to the United States Senate in 1858, Hammond argued that all societies required a “mud-sill” class of laborers and that Negroes were born inferior, while another Carolinian, William Henry Trescot, held that they were unfit to be educated. Still other arguments were philosophical: that the slaves were part of a “bygone pastoral Arcadia,” in David Donald’s words, that “had formerly flourished in the South before it was undermined by the commercialization of urban life on the one hand and by the increasing democratization and decentralization of the frontier on the other.” Could not agrarian community and hierarchy and order be saved?

By far the most telling southern argument, however, was not the defense of slavery, but the attack on northern capitalism as a system of “wage slavery” far less just and humane than black slavery. Better to be a slave at the mercy of a master who must take responsibility for him, wrote “a Carolinian,” than a wage worker subject to “no tyrant but the hard laws of demand and supply, stern and unchangeable.” Southern writers triumphantly contrasted the slave cared for by his master in illness and old age, in hard times and good, with the wage slave abandoned by his employer on a minute’s notice. As usual, Fitzhugh put the point the most tellingly, in his aptly titled tract
Cannibals All! Or, Slaves Without Masters.
Everywhere, he said, the strong took advantage of the weak—hence cannibals all—but the South had long recognized this and made provision for protecting the slave, while the North extracted full value from the worker and then tossed him into the ashcan. Capitalism, in short, was white slavery.

Candid Carolinians knew, however, that masters did not always provide for their bondspeople, as when planters for months left slaves to the mercy of overseers and malaria, or provided poor food or shelter, or sold off rebellious or inefficient field hands. Candid capitalists of the North knew that the “white slavers” were often as unjust as southern polemicists claimed. Behind the lofty pretensions of each lay an ignoble defense of the elite monopolization of property and profits. The tragedy of South Carolina was that, despite its possession of the finest intellects of the South, the defense of slavery was shallow and self-interested. The tragedy of the North was that it was too vulnerable to southern charges of “wage slavery” to be able to mount a respectable defense. The tragedy of both North and
South was that neither fully engaged with the other, neither treated the value of liberty analytically and multidimensionally, and neither linked it to equality and other principles in a well-considered hierarchy of values. Where a war of words was so inadequate, a war of weapons would seem likely to follow.

“Oyez! Oyez!” intoned the court crier as the Supreme Court justices, gathering their black robes around them, seated themselves behind their long bench. It was the same cry that had opened the court session for
Marbury
v.
Madison
a half century before, and all the sessions since; the high court still met in a drab, ground-level basement room beneath the Senate chamber; and the Chief Justice was about to render a decision as portentous and controversial as
Marbury.
Otherwise things were different. It was March 6, 1857, two days after Buchanan’s inaugural. The court had grown from five members to nine. The case involved not a white clerk named Marbury, but a black slave called Dred Scott. And the court was about to invalidate not a minor procedural act of Congress, as in
Marbury
, but one of its towering achievements—the Missouri Compromise restriction on slavery.

The faces of the men behind the bench would have delighted Dickens: Taney’s deeply seamed countenance of parchment yellow, set among shaggy eyebrows and graying locks, highlighted by large, world-weary eyes; the stern and swarthy visage of Virginia’s apoplectic Peter V. Daniel; the genial and philosophical expression of John A. Campbell of Alabama; the dour, ruddy face of Robert C. Grier of Pennsylvania; the aristocratic features of the youthful Benjamin R. Curtis. Emerging out of the rough-and-tumble of American law and politics, the justices were mainly a collection of able, experienced mediocrities, notable more for their party and sectional background than their intellects. Flanking Taney were party men—six other Democrats, one Republican, and one Whig. Flanking him were sectional men—four other judges from slaveholding states, two men from the middle states, and one from Massachusetts. The last was the Whig Curtis, the ablest intellect among the associate justices. Dominating the scene and the court—was Taney, born of the Maryland planting gentry, appointed Chief Justice by Jackson after the fight against the national bank, a devout Catholic who had long since freed his own slaves. Taney had proved to be the perfect heir to the Jeffersonian states’ rights tradition, guiding the court away from the nationalist direction it had taken under Marshall’s leadership.

Holding papers in his thin, tremulous fingers, Taney briefly reported the facts of the case. Behind his flat recitation lay a small human drama. No one, not Dred Scott himself, knew when and where he was born—probably in Virginia, probably around the turn of the century. Short, dark, uneducated and illiterate, he had been picked up, used, and moved around by white people according to their convenience: raised by a family in St. Louis, purchased by an army surgeon, John Emerson, taken to Rock Island, Illinois, when Emerson reported for duty there, removed to Wisconsin Territory, married to a slave woman named Harriet, then taken back to Missouri by the surgeon. When Emerson died, he bequeathed his slave to his wife and daughter. Then something stirred in Dred Scott; evidently he tried to buy his freedom and failed. His original owners sued Mrs. Emerson for Scott’s freedom, on the ground that his earlier residence in Illinois and Wisconsin Territory—free soil—had made him free. That was the crucial issue that had brought the case to the high court, an issue that transcended slave and owner; as the case gained in importance, prestigious legal talent was enlisted on both sides.

Though his voice weakened and almost faded away, Taney went on for over two hours, but long before he ended proslavery people in the courtroom were exultant, and free-soil men indignant. Even while other justices were concurring and dissenting the next day, northern newspapers were headlining the essential results:
SLAVERY ALONE NATIONAL
—
THE MISSOURI

COMPROMISE UNCONSTITUTIONAL—NEGROES CANNOT BE CITIZENS—THE TRIUMPH OF SLAVERY COMPLETE.
The decision was infinitely complicated, but three results stood out: Dred Scott was still a slave (he was soon manumitted, lived a year, and died of consumption); no black person could be a United States citizen under the Constitution of 1787; and Congress had no power to bar slavery in federal territories and hence the Missouri Compromise restriction was unconstitutional.

A storm of protest swept through the northern press and pulpits. The decision, said the New York
Tribune
, carried as much moral weight as “the judgment of a majority of those congregated in any Washington barroom.” Pointing to the Democratic court, the Democratic Administration, and the Democratic House and Senate, the protesters smelled a plot. Had not Buchanan and Taney held a whispered conversation during a pause in the inaugural ceremonies? Were not the President and at least two of the associate justices as thick as thieves? And had not Buchanan said in his Inaugural Address that he understood the Supreme Court would soon rule on the issue of slavery in the territories, adding piously, “To their decision, in common with all good citizens, I shall cheerfully submit, whatever this may be”? The hypocrite! He knew right then how the court would rule.
So the protesters charged—and this time their conspiracy theory was justified. Two members of the court—and possibly Taney himself—had indeed given the President ample information in advance about the nature and timing of the decision.

Buchanan had done more: he had helped Taney “mass the court.” The southern members of the court wanted to strike a mortal blow at the Missouri Compromise—but they feared that the blow would not be mortal if only the five southern members inflicted it. There must be six. The President urged his fellow Pennsylvanian Grier to join in a strong decision, and Grier did so. He wrote the President that he would try to persuade the three other justices also to back a strong position.

A broad position it turned out to be—so broad and strong and sweeping as to alter central currents of American history. As a legislative decision it recast the law of the land affecting both enslaved blacks and free. As a political decision it upset the delicate balance between North and South, exacerbated antagonism between proslavery and antislavery Democrats, and destroyed that superb device of compromise, squatter sovereignty, that had allowed politicians to evade the moral dilemma of slavery by condemning it while prating about states’ rights or local popular authority. As a judicial decision, it was prospectively even more important, for the court now had struck down a major law enacted by the coequal legislative branch and endorsed by the coequal executive branch. The court’s power to invalidate state legislation that it deemed unconstitutional, as in
Gibbons
v.
Ogden
, and to protect its own internal arrangements and integrity, had long been accepted. Now it was invading the federal lawmaking domain reserved, under democratic theory, to the elected politicians of House, Senate, and White House.

Why, observers wondered, had the court inserted itself into the political storm whirling around slavery? In part because the cautious legislative and executive politicians had left a vacuum that some force was bound to fill. But mainly because the Southerners wanted to surround and control that whirlwind. The thrust of the Dred Scott decision did not result from chance or gradualism. Behind Taney’s penetrating, closely reasoned decision lay a deep rage against the antislavery men, a rage welling out of Taney’s roots in the tobacco lands of Maryland, out of his Jacksonian heritage, out of his distaste for northern capitalism and the hypocritical reformers it seemed to breed. The pressures in him, if not on him, were southern pressures. He wanted this sweeping decision—and so did the four other Southerners and the one “dough face” on the court.

What the Northerners were now witnessing was southern power massed in the federal government. Numerically Democrats controlled the
Supreme Court, the House, the Senate, as well as the presidency and the Cabinet. Concentrated within those Democratic majorities was a southern plurality, organized, purposeful, disciplined. If there was no southern “conspiracy” in the polemical meaning, there was a group of men living and working and conferring together who cut across the formal lines separating executive and judiciary and legislature. Just as a power elite now controlled South Carolina politics, so a wider power elite dominated the federal system.

This was no simple conflict between North and South; many Southerners opposed the extension of slavery and some even slavery itself, and many Northerners hated the black man, cared little about slavery, or at least were willing to leave it in its place. It was a conflict of philosophies, parties, and policies. Dred Scott was ultimately far more than a legal decision; it was an intellectual statement, a party manifesto, a policy paper, with all the tendentious reasoning, legal error, and opinionated argument found in such documents. It was one of a series of grand debates, in Congress, in the courts, in the press, and on the stump. And ultimately it must be answered less by legal than by intellectual and political power—it must be answered by opposition leadership.

It is not given to more than a few voyagers in the stream of history to influence its basic direction. The flow of events, moving within the embankments set by geology, biology, and climate, now hurries along, now placidly twists and winds its way, through numerous channels, ultimately debouching into some broad and distant water. Destroying old landmarks, shaping new ones, the stream of history engulfs most people who stand in its way but raises some to its surface. Of these a few will breast the current and perhaps divert or even transform it, but a far greater number will seek only to survive, through agility, ingenuity, and luck.

James Buchanan stood on the crest of events when he entered the White House; the question for him was whether he would become a maker of history or a victim of it. He possessed the ingredients of power: the executive and foreign-policy authority of the presidency, a large pool of patronage jobs, power to appoint Supreme Court and other federal judges as well as cabinet members and other high officials, influence over legislation mainly through his party leadership, the visibility and prestige of the White House. What he lacked was the capacity to be both principled and propitiatory, both consistent and conciliatory, at the appropriate time for each. He strongly hoped, Edward Everett wrote the President-elect, that he could “give the country a vigorous and conciliatory administration to check the
present centrifugal tendencies.” But Buchanan was not strong enough to contain the whirlwind. He dealt with slavery by evading it, in London, in his campaign, in his Inaugural Address.