The Life Of Walter Q. Gresham
Chapter Six
THE
LINCOLN DOUGLAS DEBATES, LINCOLN S HOUSE DIVIDED AGAINST ITSELF
SPEECH,
WHICH LED TO THE
LINCOLN DOUGLAS DEBATES, THE PRETEXT FOR SECESSION,
THE DRED SCOTT
CASE , MR. LINCOLN'S ASSAULT ON CHIEF JUSTICE TANEY,
THE DRED SCOTT
CASE AS PART OF THE ABOLITIONISTS SYSTEM OF AGITATION AND
REVOLUTION.
I heard much of the Lincoln Douglas
debates that grew out of the
"House Divided against Itself" speech. Again and again I heard my
husband as a lawyer discuss that debate with the best lawyers in the
land. It may be only a woman's idea, but if it be true that that
speech, which contained the attack on Chief Justice Taney and the
declaration that "the Union cannot exist half slave, half free," and in
which he said he would not obey the Dred Scott case if a member of
Congress, made Mr. Lincoln president, it also brought war and
secession.
There was wisdom in the advice of the
twenty men, all anti-slavery and
practical politicians, among them his law partner, to whom Mr. Lincoln
submitted early in June, 1858, at the State House in Springfield, that
most famous speech in manuscript form. The judgment was unanimous that
it should not be delivered.
It was "unconditional and immediate
absolutism." The thought was
Wendell Phillips", the words only were Abraham Lincoln's.
In the early days of his
administration, Mr. Lincoln, in answer to a
question as to what he would do, said: "We will manage to keep house
some way." Keeping house, many women will admit, is not an easy task;
less difficult, some assert, and the men have not entirely succeeded at
it, than
running the government of the United States. In the ultimate analysis
the two are not entirely different, and on many occasions I have had a
hand, as has many another woman who has been on the inside, in starting
or in setting in motion the most important part of the machinery
of the government of the United States.
Born and bred to a system that denied
to a human being with
one sixteenth African blood in his or her veins the right even to
testify in a white man's court, Walter Q. Gresham understood what the
historian does not seem to comprehend, that the negro who could
not testify in a white man's court should not be permitted to sue a
white man, much less a white woman, in a white man's court, and that
freeing a slave did not elevate that slave to citizenship.
The inherent evidence tends to
confirm one of the rumors of those days,
that the Dred Scott case was made up, made up by the Abolitionists. If
so, it would not be the first time the same man or interest imposed on
a court by running both sides of a lawsuit without even the contending
lawyers being on the inside.
The most insidious species of
flattery is to tell an old man his
ipse
dixit will settle a great controversy. Adopting the language of
Justice
Story in the Prigg case, which had been so fruitful of agitation, old
Justice Wayne said in his concurring opinion in the Dred Scott case:
"The case involves private rights of value and constitutional
principles of the highest importance, about which there has come
such a difference of opinion that the peace and harmony of the
country requires the settlement of them by judicial decision." However
it may be viewed at this late day, I think all will agree that the
decision in the Dred Scott case did not make for "peace and harmony."
Well may the court have sidestepped, for the Union Senator John Bell of
Tennessee had objected in the Compromise of
1850 that the question of slavery in the territories was a
political one and that no court was strong enough to decide it. But
Congress, with the approval of every public man in the country, by the
Compromise provided that every question involving slavery in the
territories might go to the Supreme Court.
Here was the opening the Abolitionist lawyer wanted. Should Associate
Justice Benjamin R. Curtis stick to his early views and concur with the
court that it was a pro slavery Constitution, it would establish one of
their premises to support their conclusion that the Union should be
broken up. But they had overcome him by the " power of their intellect
and the brilliance of their language.
They believed that he would eat his own words that slavery was moral,
agree with them it was immoral, and then endeavor to construe the
pro slavery Constitution as a free instrument. But whether or not he
would influence any of his brethren was immaterial, for either course
would help their plan of agitation to increase the bitterness of the
sections, so that war might follow unless the so-called statesmen, as
they said, should settle the controversy as statesmen should and as the
English Abolitionists had forced the English statesmen to do.
It was a kind, sweet, gentle woman, Elizabeth Herrick, an English
Quakeress, who formulated the Abolitionist platform, "Unconditional and
immediate abolition."
Meantime, the Abolitionist
organization, with Wendell Phillips at its
head, was helping finance the anti-slavery immigrants who were pouring
into Kansas, and advising them to meet force with force. Phillips was
no mere gambler; he risked his life in the streets of Boston against
armed officers of the law, both State and National. And he was a
lawyer. Consider the uses he had made of the Prigg case.
If the truth could be known, it was the Abolitionists who "staked John
Brown in the Harpers Ferry raid." Phillips applauded
it. He went to Europe and told the French, English, and Irish
Abolitionists that for the first time in his life he was proud to be an
American. I remember the John Brown raid as if it had occurred but
yesterday. From it Walter Q. Gresham turned in horror.
And some of my historian critics will urge that the Thirteenth and
Fourteenth Amendments had had nothing to do with slavery in the
territories. They grew out of it. And when it is considered that after
the surrender, with the South prostrate, it took these two Amendments
to the Constitution of the United States to "reverse" the Dred Scott
case, it must be conceded there was some ground for it.
One night at Secretary of the Treasury John G. Carlisle's residence,
during the last Cleveland administration, there was a discussion of New
England men and measures. Mrs. Carlisle said: "Judge, you are harder on
the Yankees than we are!" My husband had just said: "I can appreciate
the relief it was to many of the New England statesmen when Wendell
Phillips died, for E. R. Hoar said they all approved that last act of
Phillips'."
The conversation turned to Charles Sumner. My husband remarked:
"General Grant never liked Sumner. Whatever you people may think of
General Grant, he was sincere, though sometimes mistaken." It was said
in General Grant's presence, "Charles Sumner does not believe in
the Bible." "No," replied the General, "he did not write it."
In the first of the Lincoln Douglas debates, Senator Douglas charged
Mr. Lincoln with being an Abolitionist and a Revolutionist, and proved
it, as the pro slavery man thought, by Mr. Lincoln's "House Divided
against Itself" speech. For Southern consumption, to separate Senator
Douglas from his Southern friends, for that was Lincoln's asserted
purpose, he demonstrated in the Alton debate that Senator Douglas was
the best Abolitionist of them all. Wrongly
decided, Mr. Lincoln said he would not obey the Dred Scott decision.
But if correctly decided, he said there was no escape from its
conclusion that it carried slavery into the territories, and that all
the power of the National government should be exerted to protect the
slave holder in his slave property instead of leaving to the
territorial
legislature the measure of protection, if any, the slave holder should
receive after he reached the territory.
George D. Prentice, in the Louisville
Journal, seized on the
Freeport speech, Senator Douglas said: Mr. Lincoln's proposition that if the
Dred Scott case was right, and
"Squatter Sovereignty," or home rule in the territories, all wrong, to
argue with the greatest force and the fiercest denunciation of all who
questioned his conclusions, that every power of Congress and the
executive should be exerted to protect the slave holder who took his
slaves to a territory. He separated John C. Breckenridge, then
vice president of the United States, from the doctrine of Squatter
sovereignty, and from Stephen A. Douglas. Prentice's views went like a
shot to the Gulf. Many a time since the war have I heard the
Southern
women complain that our worst Secessionists were Yankees." Not only
that, but I can say that the hardest masters among the slave owners
were New England men who settled in the South. Here I am simply
reciting facts.
I know how the agitation affected my
father. He was not a bitter
pro slavery man in the beginning, as I have shown. Indeed, he wanted to
get away from slavery. But the fury and assaults of the Abolitionists
made him, as well as others, frantic. And with his keen Irish mind, he
was alive to every phase of the question.
As I have before stated, Walter Q.
Gresham was not an Abolitionist.
That innate consideration for others, more even than his education and
environment, led him to a different course, and he was most considerate
of my views and those of my father. He was then considerate in private,
as well as in public, of what he said about the men and institutions of
the South, irritated as he was at times at Southern arrogance. He did
not then assail the Supreme Court. But he could and he did press the
immorality of slavery in a way that did not make the pro slavery
men wild.
To use one of Mr. Lincoln's own
expressions in the Lincoln Douglas
debate, "The winnings were not all on one side." Under the pressure of
Senator Douglas's assaults, Mr. Lincoln retreated farther than Walter
Q. Gresham was willing to go even to save the Union. After Mr. Lincoln
got the advice
of the Czar of all the Russias, with the balance of Europe with England
in the lead against him, as to the supreme importance of preserving the
Union, he announced his willingness to make any concession to the
pro slavery people, that his sole purpose was to save the Union, and
that too with or without slavery. This was not exactly consistent with
his riding into power on his avowed determination ultimately to abolish
slavery because it was immoral, and his criticism of Douglas for
stabbing the institution in the back by saying, "I care not whether
slavery is voted up or voted down. I will leave it to the people."
Possibly, had Douglas lived, his great devotion to the Union might have
induced him to assent to the concessions Mr. Lincoln was willing
to grant, but down to the last Douglas was insistent, the election of
i860 being interpreted as a "voting down," that it should be a
finish fight. I know whereof I speak. Never was Walter Q. Gresham
willing that should be done which Mr. Lincoln announced in his first
inaugural address might be made "express and irrevocable" in the
Constitution, because he said there was implied the right to own and
hold a slave. Fair, open, and, as near as it can be, honorable war, not
the John Brown kind, was what the pro slavery men could have if they
wanted more than the fathers had granted. Having shed his blood for the
preservation of the Union, and incidentally for abolition of slavery,
Walter Q. Gresham, according to many who were at a safe distance in the
rear, was not a good Republican for desiring to welcome back to our
body politic the brave men he had met on the battlefield, and
interesting to them, rather than to the inexperienced and half
civilized
"Africans," the control of their local affairs.
At Galesburg, in northern Illinois,
Senator Douglas separated the
Abolitionists from Mr. Lincoln by telling them that when he had him,
Lincoln, down at Charleston, in southern
Illinois, among the ex-Whigs and pro slavery men from Virginia and
Kentucky, he had forced him to commit himself as to just where he stood
on the subject of the black man. Mr. Lincoln could
not deny his own words:
I will say, then, that I am not now
nor ever have been in favor of
bringing about in any way the social and political equality of the
white and black races; that I am not now nor ever have been in favor of
making voters of negroes, or jurors, nor of qualifying them to
hold office, nor to intermarry with white people. I will say in
addition to this, that there is a physical difference between the white
and black races, which, I believe, will forever forbid the two
races living together upon terms of social and political equality; and
inasmuch as they cannot so live, that while they do remain together,
there must be the position of superior and inferior, and that I, as
much as any other man, am in favor of the superior position being
assigned to the white man.
These are the words that, since
reconstruction days, have been quoted
by Southern men, with the acquiescence of the nation, in justification
of the suppression of the negro vote in the South. At the time these
words were uttered there was not a State in the Union that did not
discriminate in its constitution and laws against the freedmen.
Promptly asserting, in the remaining debates in northern Illinois, that
the freedmen should be treated as human beings and accorded all
the rights, among which he failed to mention the ballot,
and he never was for enfranchisement en masse, essential to the
protection and enjoyment of their life, liberty, and property,
Lincoln not only lost Abolitionist votes in northern Illinois in 1858,
but the impression his "House Divided against Itself" speech produced
on the pro slavery men was not effaced for a long time.
We understood the Dred Scott case,
for, as I have said, while Winnie,
our cook, was free in Indiana, when she returned with us to Louisville,
Kentucky, as she did at certain intervals, her status as a slave was
resumed, as the Supreme Court of Massachusetts had held in the Megs
case. "Old Winn" preferred Kentucky to living under the reactionary
Indiana constitution. The Illinois Black Laws were still on the
statute books. And there was the Brandenburg case.
To the last "Old Winn" was my friend.
"I will never leave until I cook
your wedding breakfast." And a most bounteous one it was. She was the
last to shower on me her blessings. "Good-bye,
Mammy" I said as I embraced her.
As we made the twenty mile drive from
Corydon to New Albany that crisp
February morning, my young husband said his confidence increased
that the prompting of the human heart would settle the slavery
question.
Every Southern court that passed on
it, after the ratification of
the Constitution of the United States, held that the voluntary taking
of a slave to free territory manumitted that slave even in the
slave territory from whence the slave had been taken. Louisiana,
Kentucky, Mississippi, and Missouri so held. To quote the language
of the Supreme Court of Louisiana (in Marie Louise vs. Moret, 9 La.
Rep. 475) in 1835: "The benign and liberal effect of the laws of France
is such, that Marie Louise being free there one minute, it was not
within the power of her former master to reduce
her again to slavery in Louisiana."
In 1820, the Court of Appeals of
Kentucky, in the case of Rankin vs.
Lydia where it was claimed Lydia was free, and it was so held,
because her master had taken her to the territory of Indiana, while not
going as far as the Louisiana court, declared as follows: "And is
it to be seriously contended that as soon as he transported her to the
Kentucky shore, the noxious atmosphere of this State, without any
express law for the purpose, clamped upon her newly forged chains of
slavery, after the old ones were destroyed? For the honor of our
country, we cannot for a moment admit that the bare treading of our
soil is thus dangerous to the degraded African."
In 1827, in the celebrated Grace
case, on appeal from the Vice
Admiralty Court of Antigua, one of the British West Indies, Lord
Stowell of the High Court of Admiralty, in a long but not logical or
well considered opinion, criticized, if he did not overrule, Lord
Mansfield's opinion in the Sommerset case. In 1822, a Mrs. Allen, a
British subject, residing in Antigua, went to England on a visit. She
took with her as her maid one of her husband's slaves, named Grace.
After a year's visit Grace returned voluntarily with Mrs. Allen to
Antigua. August 8, 1825, at the instance of one of the West India
custom officers , Wykes, an action was brought in the Admiralty Court
of Antigua to test the question of Grace's manumission because she had
been in England. At that time a slave was so far a chattel or an animal
that he or she could not maintain a suit in his or her own name in the
West India colonial courts. The Antigua court held that although free
in England, Grace's status as a slave was resumed when she returned to
Antigua, and the High Court of Admiralty affirmed that decree.
Still, the Grace case
did not
"faze" the Southern courts, and not until the
Supreme Court of Massachusetts, in 1837 in
the Megs case. in an opinion by the venerable Lemuel C. Shaw, decided,
in the face of the Louisiana decision we have just quoted, that a
Louisiana slave owner could bring his slave to Massachusetts for a
temporary purpose and not thereby manumit that slave, and Justice
Story's unqualified endorsement of Lord Stowell's opinion in the Grace
case, did the Southern courts abandon their humane and generous
sentiments. Senator George F. Hoar in his memoirs places Justice Shaw
at the head of the Massachusetts judiciary, and that seems to be
the place accorded him by the bar of the nation. But neither as a law
student nor as a judge did Walter Q. Gresham ever look on Justice
Story, Justice Benjamin R. Curtis, or Chief Justice Shaw, as great
jurists or statesmen, as Senator Hoar classes Chief Justice Shaw. The
judgment of Chief Justice Shaw in the Megs case, and Justice Story's
endorsement of the Grace case, really lie at the basis of the Dred
Scott decision. The lawyer for the slave owner in the Megs case was
Benjamin R. Curtis. It was the argument of Benjamin R. Curtis,
that slavery was not immoral, that the Grace case had overruled the
Sommerset case. "that a citizen of Louisiana has a very different
standing in our courts at this day from the standing of a Virginian in
the Court of the King's Bench in 1772 just before the breaking out of
the Revolutionary War," together with Justice Story's unqualified
endorsement of the Grace case, that made the Megs case.
In 1850, the Supreme Court of the
United States, Justice Story still a
member, affirmed the Court of Appeals of Kentucky in 1843,4
overruling the decision in the Lydia case and adopting the Megs case as
a rule of property in Kentucky. The Mississippi court
reversed itself. But in Louisiana it took an act of the
legislature to adopt the Megs case
as a rule of property.
A square decision of the Supreme
Court of the United States upholding
the Megs case would operate in the North as the Megs case had in New
England. The Megs case had not only utterly confounded the conscience
Whigs and the Free Soilers, but it had enabled Wendell Phillips to whip
New England into a frenzy against "the Fugitive Slave bill lawyers and
judges."
There is much to support the view
asserted at the time, that it was the
Abolitionists who conducted from the beginning to the end the
litigation about the negro Dred Scott, especially after it got to the
Federal courts. The final judgment of the Supreme Court of the United
States, declaring Dred Scott to be Dr. F. A. Sanford's slave, was
entered March 7, 1857. A few days later, Dr. Sanford executed and put
on record a deed setting Scott free.
"Boston has become a suburb of
Alexandria, Mason and Dixon's line has
been shoved up to the Canadian border, and the time will come when the
slave trader will exhibit his marts at the foot of Bunker Hill
Monument," said Phillips. Of course he did not believe it, but as a
lawyer he knew how to argue his case and incidentally "lay on the lash."
According to some accounts, Dred
Scott was born a slave in Louisiana
Territory before the purchase. By the treaty with Napoleon, the rights
of the citizens of Louisiana to their property, which included slaves,
were to be recognized and protected by the United States. Another
account has it, he was brought to Missouri by his Virginia master. His
owner, Dr. Emerson, a surgeon of the United States Army, removed him
from Missouri to the United States military post at Rock Island, in the
State of Illinois, and thence to the military post at Fort Snelling,
now in the State of Minnesota, then a part of Upper Louisiana, and
north of latitude 360 30'. Section 8 of the Act of
Congress of 1820, known as the Missouri Compromise, prohibited slavery
north of
the line 360 30'. At Fort Snelling, Dred Scott was permitted to marry
Eliza, the slave of Major Talifero, and, to keep them together, Dr.
Emerson purchased Eliza. Of this marriage two children were born,
Eliza, on board the steamboat Gipsy in the Mississippi River north of
the Missouri line, and Lizzie, in the State of Missouri at the military
post called Jefferson Barracks, where Dr. Emerson returned in 1838,
bringing with him Dred Scott and the two Elizas.
Dr. Emerson died in Davenport, Iowa,
in 1844, leaving his property in
trust to his wife for his daughter, and naming Mrs. Emerson's brother
Dr. F. A. Sanford, as executor. The will was probated in Iowa. Sanford
refused to qualify as executor, and Mrs. Emerson was appointed
administratrix.
In 1846 Mrs. Emerson returned to St.
Louis. Meantime, Dred Scott
had continued in St. Louis practically free, but it was said he was
lazy and good for nothing, and would not work. Frank P. Blair, Jr., was
a Free Soiler, then practicing law in St. Louis, and his brother,
Montgomery Blair, was one of the judges of the Common Pleas Court of
St. Louis County.
In December, 1846, Dred Scott and his
wife began an action in the
Circuit Court of St. Louis County against Irene Emerson,
administratrix. His claim to freedom was based on Section 8 of the
Missouri Compromise, and on the early decisions of the Supreme Court of
Missouri, namely, that the taking by a master of his slave to free
territory manumitted the slave, even though the slave voluntarily
returned with the master to Missouri. Accordingly, the jury at the
April, 1849, term, was instructed by the trial court to find for Scott.
This they did, but the verdict was set aside and a new trial granted.
On the second trial in January, 1850, before another judge, under
peremptory instructions from the court, the jury
returned another verdict for Scott. This time judgment was entered on
the verdict. On
appeal, the Supreme Court of Missouri at the March term, 1852 (15 Mo.
516), reversed itself; that is, took back its early decision, followed
the Massachusetts case and the late Kentucky case, and instructed the
Circuit Court of St. Louis County to do what it promptly did, find
Dred Scott was still a slave.
Under normal conditions, after the
judgment of the Supreme Court
of Missouri the litigation would have ended. In the Fall of 1850, Mrs.
Emerson married Dr. Calvin C. Chaffee, a physician of Springfield,
Massachusetts, an Abolitionist, and soon after a member of Congress
from the Springfield district. After the decision of the Supreme Court
of Missouri, Mrs. Chaffee sold Scott, his wife, and children to her
brother Dr. F. A. Sanford, who had refused to qualify as executor
of Dr. Emerson's estate, and who was then a citizen of New York.
In 1853, Scott, claiming to be a free
man, brought his action of
trespass against Sanford in the Circuit Court of the United States for
the District of Missouri. The jurisdiction was predicated on the
diverse citizenship, Scott of Missouri and Sanford of New York. Sanford
pleaded that "Dred Scott is not a citizen of Missouri because he is a
negro of African descent, whose ancestors were brought into this
country and sold as slaves, and thus he cannot sue in the United States
courts." That it was a made-up case is almost conclusive from the
agreed statement of the case embodied in a written stipulation which
was filed for the consideration of the court and jury. There was no
need of a jury. All depended on the conclusions the court would draw
from the agreed facts. After setting forth the facts as we have stated
them, there was this stipulation, which as a matter of fact was not
true, namely, that it was Dr. Emerson and not his widow, Irene Emerson
Chaffee, who sold Scott, his wife, and children to Sanford. Under Dr.
Emerson's will there was a question whether the widow, Mrs. Chaffee,
had the power to sell. The failure of some one to bring
that question to the attention of the lower or upper Federal courts is
conclusive that the same man or interest was running both sides of the
lawsuit. There was a directed verdict and judgment for the defendant,
and a writ of error to the Supreme Court of the United States.
The case was argued in the Supreme
Court by Montgomery Blair, then
off of the Missouri bench, and George T. Curtis, for Scott, while
Reverdy Johnson of Maryland and Senator Guyer of Missouri appeared for
Sanford. I afterwards knew Reverdy Johnson well. George T. Curtis was a
brother of Justice Curtis, and this relationship should have kept him
out of the case. If the Abolitionists hired Mr. Curtis, and it must
have
been they, for Dred Scott was without means to do so, it was a mean
trick to embarrass his brother on the bench.
The court decided first, that a
person of African descent whose parents
had been brought into the United States and sold as slaves, could not
be a citizen of the United States, and could not sue in the courts of
the United States. Dissenting from this proposition, Justice Curtis
said that, having decided it, there the courts should have stopped.
Possibly they could have stopped at this point, and well, perhaps, it
would have been had they done so and said to Congress and the people,
"It is a political, not a judicial, question/1 But Congress, in the
Compromise of 1850, although Senator John Bell of Tennessee had
protested no court was strong enough to settle the controversy, had put
the question of slavery in the territories up to the Supreme Court, and
John Marshall had set the precedent of deciding every question
presented in a lawsuit on the record or orally on the argument. The
last question Chief Justice Marshall decided was that he did not have
jurisdiction. It was thus in Marbury vs. Madison, "The first milestone
of the Constitution," in which a great constitutional question was
decided. It was then that Thomas Jefferson became so
enraged at the judicial power. After deciding that Jefferson as
President had no right to withhold commissions President Adams had
signed after his appointments had been confirmed by the Senate, Chief
Justice Marshall decided the court was without jurisdiction, because,
he said, the case, which was a petition for a mandamus commanding
Secretary of State James Madison to deliver the commissions, should
have been filed in a lower court and brought to the Supreme Court by
appeal instead of being filed in the first instance in the office of
the clerk of the Supreme Court. When it came to questions of
Federal power, Taney never repudiated anything that Marshall said or
did.
On one proposition, Associate Justice
Curtis concurred with the Chief
Justice, namely, that a slave at that time could neither be a citizen
of the United States nor sue in the courts of the United States. Then
as the majority pointed out, it had not been in the power of the Romans
by manumission to elevate the former slave, no matter what the color of
his skin, to citizenship in the republic. The creation of a citizen was
a political and not a judicial power. Over Justice Curtis's dissent,
the court held that breathing the free air, first of Illinois and then
of the territory of Minnesota, did not make Dred Scott a free man
when he voluntarily returned with his owner to Missouri. Section 8 of
the Missouri Compromise, prohibiting slavery in the territory north of
the line 360 30', was unconstitutional because it violated the
treaty of the Louisiana purchase and because the Fifth Amendment
of the Constitution of the United States protected the owner in his
property; and as the Constitution recognized a slave as property, it
was beyond the power of Congress to put a limitation on the right of
the owner to take a slave to a territory of the United States.
Emphasizing this right of the owner
to take his slave as any other
property to a territory, but suggesting no power or means the
government of the United States possessed of
protecting and preserving that property after the
territory was reached, the decision gave color to Senator Douglas's
claim of Squatter or Popular Sovereignty or home rule, by holding that
while the United States could acquire territory, it expressly held such
territory could only be acquired with the object in view of making
that territory into States, holding it in the meantime not as Great
Britain had held her American colonies, but in a way that would qualify
them to become States. It was the British crown that in the first
instance forced slavery on the colonists.
Much of the opinion might be
exchanged for Wendell Phillips' argument
in support of his proposition that the Constitution of the United
States was a pro slavery instrument. Amendment, as provided by the
Constitution of the United States, Chief Justice Taney suggested, was
the remedy for these harsh and unjust rules embodied in the
Constitution of the United States, that, as Phillips said, grew out of
''the belief that existed at the time the Constitution was adopted
that the African was a mere chattel, so recognized by the laws of the
nation, to be bought and sold, and had no rights the white man was
bound to respect.
Not only did the Chief Justice and
several of his concurring
brethren thus rub it into New England for her inconsistency, but there
is also in the Chief Justice's opinion that trace of irony that
the philosopher often reveals for the mere man of property.
Following his long dissenting
opinion, after a bitter correspondence
with Chief Justice Taney, Justice Curtis resigned September 1, 1857.
For Justice Curtis the Abolitionists had only sneers, never a word
of censure for Taney.
With Mr. Lincoln's approval, Congress
had put the question of slavery
in the territories up to the court, and while the court did the best it
could, it did not attempt to make a complete and final exposition of
the question. Had Scott
remained in the territory,
a different question would have
been presented.
If in 1858 Mr. Lincoln, instead of
assailing and, as some say,
inflicting a blow on the court from which it has never recovered, had
taken as his text, " Amend these harsh and unjust rules," condemned as
they are by the public opinion of the world, as the Dred Scott opinion
all but avowed, and by all the early Southern jurists, he would have
occupied a position of vantage from which to assail the immorality of
the institution, a position that would not have admitted of their
"going out" on him, or asserting that he was a revolutionist and
secessionist. "The Illinois Black Laws" and the reactionary
constitution of Indiana of 1850 tended to support Mr. Lincoln's
conclusion, if he really believed it, that the nation was to
become all Slave. On the other hand, there was much to support his
suggestion that it would become all Free. In his younger days, when at
the bar, Rodger B. Taney had defended the Maryland and Pennsylvania
Quakers who operated the Underground Railroad between those States, and
denounced slavery most bitterly. But if, as I have heard many men both
North and South say, slavery had become so interwoven in the web and
woof of our constitutional, social, and commercial life that
nothing short of war could end it, then Mr. Lincoln must be accorded
the credit for uttering the words that made the conflict of arms. The
fight over, we still, as I have said before, had to amend; or as Walter
Q. Gresham stated it, "The war legislated. But what was not true of
many another man, Mr. Lincoln grew in the midst of the strife. Had he
lived, I believe, as is now generally believed, that we would have
escaped many of the mistakes of reconstruction. In that policy he would
have had a firm supporter in Walter Q. Gresham.