In his inaugural address, President Buchanan, after referring to the dispute over the legal power of the inhabitants of a territory to prohibit slavery, added, "This is, happily, a matter of but little practical importance. Besides, it is 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." Two days later the supreme court delivered the decision to which Buchanan referred, and in so doing stepped suddenly into the very midst of the political controversy, by announcing that Congress had no power to prohibit slavery in any territory; and that the only authority touching slavery conferred upon Congress by the Constitution was " the power coupled with the duty of guarding and protecting the owner in his rights."
The federal judiciary had hitherto borne no part in the territorial controversy, and this sudden plunge into the heart of the problem was due only to a sort of revolution within the court itself, a revolution whose significance can be fully grasped only by comprehending the policy of the supreme court upon similar matters and upon constitutional interpretation in general immediately prior to the decision.
Ever since the reconstruction of the supreme court, in the days of Jackson and Van Buren, the new Democratic judges had been disposed to restrict its activity to purely legal matters, avoiding any such constructive policy as that carried out by Marshall in the famous decisions of the last half of his career. In the ten years from 1850 to i860, opinions were delivered in nearly a thousand cases, and the time of the court was absorbed in litigation arising from the commercial expansion of the country. Public land cases from the newer states and the territories grew to be a heavy burden, especially those from California, where titles were in great confusion; admiralty cases from sea-coast, lake, and river traffic increased in number, and a rapidly growing mass of interstate cases came up from the circuits and the state courts. Among the important decisions of these years were those in patent suits, concerning the Morse electric telegraph, the McCormick reaper, and the Goodyear rubber process. In all directions, the court was called upon to play its part in the new era of industrial competition.
Whenever the court was obliged to face questions involving constitutional construction, the Jacksonian Democracy of most of the judges prevented any firm and consistent policy. While the general lines of federal authority were too firmly established by Marshall to be disturbed, the strong reverence of most of the judges for state rights led them to favor the authority of the states at the expense of federal supremacy, wherever it was possible without a direct reversal of Marshall's decisions. Of the nine judges who took part in important constitutional cases in this period, only three — McLean, of Ohio, Wayne, of Georgia, and Curtis, of Massachusetts — were federalist in tendency, and no one of these held to his position with entire consistency. Taney, of Maryland, the aged chief justice, was uncertain in his attitude, at times maintaining with vigor a position identical with Marshall's, and at other times adopting the full state-rights phraseology. The remaining five — Nelson, of New York, Catron, of Tennessee, Grier, of Pennsylvania, Campbell, of Alabama, and Daniel, of Virginia — were almost invariably found using the state-rights arguments, Daniel going so far as to employ habitually the political conceptions of Calhoun. It was in the court an era of constitutional reaction.
In but one direction was federal jurisdiction substantially strengthened in this period, and that was in a field where state-rights views presented obvious practical difficulties. In the cases of the Propeller Genesee Chief (1852) and the Wheeling Bridge (1856), the court extended the authority of Congress and the jurisdiction of the federal courts over the Great Lakes and the Ohio River, declaring both to be "navigable waters of the United States." The English precedent of a mere tidewater jurisdiction was abandoned as inapplicable to American conditions, as was stated in the Genesee Chief case by Taney, in an opinion which for clearness, force, and breadth was worthy of Marshall himself. Only the unbending Daniel dissented on his usual strict-constructionist grounds. In the Wheeling Bridge case, however, when the court, at the instance of the state of Pennsylvania, ordered a bridge chartered by Virginia to be altered to conform to the necessities of Ohio River traffic, Taney joined Daniel in dissenting, largely on the ground that the sovereign authority of Virginia was not open to question. But in this case, even Catron and Nelson concurred with the opinion of McLean for the court. It was so clearly a matter of public necessity that federal jurisdiction should be complete over the interior waterways that Democratic scruples lost their force.
In other regions where federal and state authority clashed, the court spoke in hesitating tones; dissenting opinions were habitual, and few decisions upon constitutional points were made by a united bench. In the sphere where Marshall, by the Dartmouth College case, had sharply restricted state power, no less than a score of decisions were rendered by which the prohibition upon state interference with contracts was less rigidly construed. Only with difficulty and by a divided court were any decisions attained invalidating state laws on this ground. In 1851 an Arkansas law, refusing further reception to bills of a defunct state bank, was held to be a violation of a contract in the original bank charter; and three years later this decision was reaffirmed in a similar case. But four of the state-rights judges dissented the first time and three the second. When Ohio tried, at first by legislation and then by a new state constitution, to impose a tax upon banks greater than that provided for in the original banking act of 1845, the court in two cases, over the dissent of Catron, Daniel, and Campbell, held these to be impairments of a contract and invalid; but in a third case, Taney and Grier shifted their ground, joined the three state-rights advocates, and secured a different result.
In the field of federal control over commerce, the doctrines of Marshall were generally upheld, as in the earlier "Passenger Cases" (1848); but in Cooley vs. the Port Wardens (1852) the court held that a law of Pennsylvania, forcing the payment, if a vessel declined a pilot, of one-half of the pilotage fee to the Society for the Relief of Distressed and Decayed Pilots, was not a regulation of commerce and hence was valid. The majority, in this case, was composed of the state-rights group with the chief justice, and, oddly enough, the Whig Curtis, who himself delivered the opinion. Wayne and McLean dissented on the grounds of the reasoning in Marshall's fundamental opinion in Gibbons vs. Ogden. These decisions illustrate the disconnected attitude of the court upon constitutional questions and its lack of controlling principles.
The uncertainty of the court in constitutional matters did not prevent it from standing higher in public estimation than ever before. To most Americans, it appeared the type of conservatism, impartiality, and safety. The learning, mental vigor, and thoroughness of its members had won the highest respect of the legal profession and the public. It seemed to be the one branch of the federal government wholly untouched by the sectional controversy, more especially since in cases involving slavery it had shown consistent caution. In the two best-known cases, those of Prigg in 1842, and Van Zandt in 1847, the court had held the fugitive-slave law of 1793 to be a constitutional enactment based upon the power implied in the clause of the Constitution prescribing the return of fugitives from service; but there was nothing in these decisions of a pro-slavery or anti-slavery character. They were purely legal arguments, simply applying the reasoning customary since Marshall's day to the interpretation of a clause of the Constitution. In the Prigg case, the court further held a state law invalid which conflicted with the federal statute, by assuming to punish kidnapping. During the struggle over slavery in the territories, repeated suggestions were made that the legality of territorial slavery should be left to the supreme court, and the New Mexico act of 1850 contained a provision that cases involving the title to slaves and those involving the question of personal freedom were to be brought directly to it. Still, nothing had yet come to test its temper, and nothing but the known state-rights tendencies of six of the judges and the fact that five of the nine were from slave states seemed to point to any but cautious action when, in 1855, the suit of Dred Scott vs. Sandford was brought before it on appeal from one of the circuit courts.
The facts in the case were simple and admitted to an easy decision without touching upon any vital points. Scott, a slave, had been taken by his master, an army surgeon, to places in Illinois where slavery was prohibited by the Northwest Ordinance and by the state constitution, and to a post in the northern part of Louisiana territory where slavery was excluded by the Missouri Compromise of 1820. Scott returned with his master to Missouri without protest, but after several years brought suit for his freedom in the state courts against his master's widow, on the ground of residence in free territory, supported, in fact, by Missourians to make a test case. In 1852 the Missouri supreme court decided against him, but meanwhile, he had come into the possession of the executor of his former owner, Sandford, of New York, against whom he brought suit in the federal circuit court as a citizen of another state. In the federal court, Sandford raised a preliminary objection that Scott, as a negro descended from slaves, could not possibly be a citizen and so could not sue. This the court overruled, but then went on to hold that in such cases of personal freedom the federal practice was to follow the decision of the highest state court, and hence, since the Missouri court had decided against Scott, the circuit court must so decide.
When the case came before the federal supreme court, the only point to be adjudicated was the decision of the circuit court to follow the Missouri court, and the way seemed to be clearly marked out by the case of Strader vs. Graham (1851), where precisely this rule of following state decisions had been laid down. Upon all the principles of legal caution and court practice, the duty laid upon the supreme court was an unimportant one. When the case was first argued, this view prevailed with the majority of the judges; but since Taney was in doubt as to whether the plea regarding Scott's citizenship might not properly come before them, a second argument was ordered on that question for December 1856. After the second argument, it still appeared that the majority held to the plain path marked out by precedent, and Nelson, of New York, a rigid state-rights judge, was instructed to write an opinion sustaining the decision of the circuit court.
At this point, a new influence suddenly appeared. Judge Wayne, of Georgia, was impressed after the recent victory of the Democratic party in the presidential election with the idea that the time was ripe for the supreme court to end the slavery controversy once and for all, and he urged the court to make the pending Dred Scott case the opportunity for a decision which should take the whole subject of regulating slavery out of the power of the federal government. His animated arguments with his colleagues were undoubtedly made effective by the sense of the crisis through which the country had just passed, and in the end, he prevailed upon the southern justices and Grier, of Pennsylvania. A motion was then adopted that Chief Justice Taney should write an opinion "upon all questions involved," but the moment the court departed from the plain road marked out by precedent there was no possibility of unanimity. When Taney read his opinion "upon all questions involved," one judge only — Wayne — concurred with him, five others concurred separately in a partial and irregular fashion, and two dissented point-blank.
Upon the original issue of Dred Scott's freedom the decision of the court stood, as it had been from the start, adverse, only Curtis and McLean dissenting. Taney's opinion, assigning reasons for the decision which stood formally as the opinion of the court, was, however, not so much a judicial statement as an elaborate essay upon the history of slavery under the Constitution, and a justification of the most radical southern positions regarding the institution. No negro, the chief justice said, could possibly be a citizen in the constitutional guard to him, for the Constitution was not intended to apply to any but the white race. The negroes, he concluded, in words which became inseparably attached to his name, were considered at the time of the adoption of the Constitution, "so far inferior that they had no rights which the white man was bound to respect." Hence Dred Scott could not sue in the United States court as a citizen of Missouri.
At this point, having denied the right of the plaintiff to sue, Taney was bound in logic to dismiss the case, but instead of so doing he took up the question of Scott's freedom, as affected by residence in Louisiana territory and in Illinois. The right of property in slaves, he argued, was specifically mentioned and recognized in the Constitution; no power over it was given to Congress; the United States held territories simply as "representative and trustee" for the states, and could make no discrimination between citizens of the several states in respect to property rights in them. Hence, he concluded, a prohibition of slavery in the territories was invalid, the Missouri Compromise had been unconstitutional, and Scott could not acquire freedom because of temporary residence in such territory. Finally, as to the effect of residence in Illinois, Taney turned to the decision of the Missouri court, which he held to be decisive against any claim to freedom on that ground. Hence, from all points of view, Scott had not proved a right to his freedom.
Had this opinion, with all its glaring inconsistencies, stood as that of a united court, its length, learning, and authority would have made it impressive, but it was almost as much damaged as supported by the variety in the concurring opinions. In the first place, Taney's main position, that of the impossibility of citizenship for a negro descended from slaves, was concurred in by only two judges, while one dissented and the other five expressly declined to consider the point. Then as to reaffirming the decision of the circuit court that the Missouri decision must be followed, one judge — Nelson — rested his whole opinion upon it, and five others, including Taney himself, concurred. But if this position were valid, there was no necessity for any consideration of the Missouri Compromise; for if Scott was not freed by the Illinois prohibition, which was undoubtedly constitutional, then the prohibition in the Louisiana territory, whether constitutional or not, could not affect his status.
Nevertheless, Taney received the concurrence of five other judges in declaring the Missouri Compromise to have been illegal and void, although such an opinion was an obiter dictum, dragged into the case. Justice Catron, in his desire to stand with the majority, took the extraordinary ground that, although there was no question of the power of Congress over the territories, the third article of the treaty of 1803, which guaranteed the inhabitants of Louisiana their rights, stood protected by the Constitution and could not be repealed. Hence, the Missouri Compromise was invalid, not because of any special sanctity of slave property, but because it conflicted with a treaty, a position wholly foreign to American constitutional law. The political character of the whole performance was stamped upon it in the phraseology of the opinions as well as in the logical incoherence and superfluousness of the arguments, however able most of the individual opinions were if taken singly.
Of the two dissenting opinions, McLean's was vigorous in language and argument, but Curtis's was undeniably superior and has gained a fame seldom acquired by dissenting views. He took up categorically, and, by a complete, logical argument, refuted every one of the chief justice's points. He began by disproving on historical grounds the assertion that no negro could be a citizen; hence Dred Scott could not legally be debarred from bringing suit on the mere ground of color. In continuing, he held that the Missouri decision was not binding upon the supreme court and that a slave did gain a right to freedom by residence in a region where slavery was prohibited. The contention that the United States had no power to exclude slavery from a territory, Curtis showed to be contrary to the uniform practice of the government since 1789, and a practical reversal of several fundamental decisions of the court concerning the powers of Congress over territories. He held, therefore, that the Missouri Compromise had been constitutional up to its repeal in 1854, and that Scott ought to be declared free because of his residence in the territory to which it referred.
As an exposition of the Websterian or Federalist conception of the nature of the government and the powers of Congress, this dissenting opinion was a masterpiece. It overthrew the labored arguments of Taney and showed the majority to be innovators and practical revolutionists. Curtis plainly said that, in his eyes, the decision was worthless. "On so grave a subject as this," he said, "I feel obliged to say that in my opinion, such an exertion of judicial power transcends the limits of the authority of the court, as described by repeated decisions. ... I do not consider it to be within the scope of the judicial power of the court to pass upon any question respecting the plaintiff's citizenship in Missouri save that raised by the plea to the jurisdiction, and I do not hold an opinion of this court, or of any court, binding when expressed on a question not legitimately before it." The only point where Curtis's argument failed to overthrow the majority opinions was his denial of the binding force of the Missouri decision upon the United States courts. The original decision of the court, as expressed in Nelson's opinion, agreed in this respect with the usual practice of the supreme court in following state precedents, and was a sufficient — in fact, the only sufficient — ground for the decision.
The effect of this decision was weakened both by the patent and almost avowed purpose to settle a political question as well as by the intrinsic disagreements and inconsistencies of the judges. Lawyers were quick to expose the extra-legal character of much of Taney's opinion and to doubt the binding character of anything but the bare decision itself. Yet, after all judicial, legal, and logical criticisms were made, the fact remained that a two-thirds majority of the judges was on record as holding the extreme southern position regarding the power of Congress over the territories. It seemed to be a positive intervention on behalf of slavery, and as such it was welcomed by southern leaders, writers, and political agitators, in a chorus of praise which showed how substantial they thought their gain. "The nation has achieved a triumph," said the Enquirer, "sectionalism has been rebuked and abolitionism has been staggered and stunned. Another supporting pillar has been added to our institutions."
In the north, the impression was universal that the "slave power" had gained another victory at the expense of legal impartiality and honor. Although the decision had been foreshadowed before Buchanan's inauguration, it came as a surprise and irritation and provoked a storm of criticism. 'Alas, that the character of the Supreme Court of the United States as an impartial judicial body has gone!" cried a writer in the New York Tribune. "It has abdicated its just functions and descended into the political mire. It has sullied the ermine; it has dragged and polluted its garments in the filth of pro-slavery politics!" "The majority of the court," said the Springfield Republican, "rushed needlessly to the conclusions, and are justly open to the suspicion of being induced to pronounce them by partisan or sectional influences. . . . The people are the court of last resort in this country. They will discuss and review the action of the Supreme Court, and if it presents itself as a practical question will vote against it."
The Republicans, declining to bow to a decision that would cut the ground from under their feet, denounced the Dred Scott doctrines as unworthy of obedience and reasserted their purpose to oppose the extension of slavery into the territories. The radicals among them threatened to override or reconstruct the court. Seward, in the Senate, exclaimed, defiantly, "The Supreme Court of the United States attempts to command the people of the United States to accept the principle that one man can own other men; and that they must guarantee the inviolability of that false and pernicious property. The people of the United States never can, and they never will accept principles so unconstitutional and abhorrent. . . . We shall reorganize the Court, and thus reform its political sentiments and practices, and bring them into harmony with the Constitution and the laws of nature."
Many believed that it was part of a plot concocted between Douglas, Pierce, Taney, and Buchanan, or, as Lincoln expressed it, "When we see a lot of framed timbers, different portions of which we know to have been gotten out at different times and places and by different workmen — Stephen, Franklin, Roger and James, for instance — and when we see these timbers joined together and see that they exactly make the frame of a house, ... in such a case, 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 or draft, drawn up before the first blow was struck." This charge enraged Taney and Buchanan, and was, in fact, a mere assumption, unsupported by any other evidence than the reference by Buchanan, in his inaugural, to the approaching decision.
Within the next three years the court was called upon to give decisions in two other cases involving slavery; and each time, although its action was in reality conservative, it appeared to the suspicious north to be tinged with pro-slavery bias. In Ableman vs. Booth (1859), a case where the Wisconsin supreme court interfered in behalf of a person guilty of aiding a fugitive slave to escape from the custody of federal officials, on the ground that the fugitive-slave law, which he had violated, was unconstitutional, Taney, in a severe opinion, pronounced the action of the Wisconsin court to be revolutionary and the fugitive-slave law to be perfectly valid. In 1861 the court was asked to issue a mandamus to compel the governor of Ohio to deliver to the Kentucky authorities a man charged with aiding a slave to escape. Taney's opinion stated strongly the duty of the governor of Ohio to deliver the criminal but admitted the impotence of the supreme court to compel him to act. "When the Constitution was framed," said Taney, "and when this law was passed it was confidently believed that a sense of justice and of mutual interest would insure the faithful execution of this constitutional provision by the executive of every state. . . . But if the Governor of Ohio refuses to discharge this duty, there is no power delegated to the general government ... to use any coercive means to compel him."
The words of the aged chief justice fittingly closed an epoch in the history of the supreme court. The time had come when justice and mutual interest were no longer adequate to settle sectional disputes. The intervention of the court in the slavery controversy proved utterly futile, for the differences between the north and south were too deep-seated to be affected by a mere court decision. The only results of the Dred Scott case was to damage the prestige of the court in the north and to stimulate a sectional hostility that threatened to recoil upon the heads of the judges themselves.