Page images


other states, to this extent, that they would, in a given case, have to perform a corresponding duty to them.

If it were to be inferred from this provision that the constitution of the Union looked upon slaves as property, then, as the Washington Union in an article of November 17, 1857, very rightly said, the ultimate consequence of the Dred Scott decision was that the states themselves could not declare slaves brought within their borders free.1 Benjamin denied this because the constitution prohibited only the government of the Union, and not the states, to deprive any one of his property "without due process of law."


1 "The constitution declares that 'the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.' Every citizen of one state coming into another state has, therefore, a right to the protection of his person, and that property which is recognized as such by the constitution of the United States, any law of a state (!) notwithstanding. So far from any state having a right to deprive him of his property, it is its bounden duty to protect him in its possession.

"If these views are correct and we believe it would be difficult to invalidate them-it follows that all state laws, whether organic or otherwise, which prohibit a citizen of one state from settling in another, and bringing his slave property with him (even several slave states had done so), and most especially declaring it forfeited, are direct violations of the original intention of the government, which, as before stated, is the protection of person and property, and of the constitution of the United States, which recognizes property in slaves."


And so Pugh, of Ohio, said: "If the constitution of the United States gives this form of property its peculiar protection . . . and the right to carry it, it is carried into every state over the constitution and laws of the state; for the constitution of the United States is supreme above the constitutions and laws of the states, and it means this or it means nothing. There is no distinction, there can be none made." Congr. Globe, II Sess. 35th Congr., p. 1250. To this faithful shield-bearer of slavery this consequence seemed an abomination.

[ocr errors]

To this it could be answered that all the state constitutions contained the same provision. But even if such were not the case the argument would not have had the slightest weight. The constitution of the United States was above all state constitutions and state laws. If a state deprived an owner of that which the constitution of the United States "expressly " declared to be property, because it was not property within the boundaries of that state, the constitutional or legislative provision which deprived him of it was null and void, because in conflict with the constitution of the United States. That Taney did not draw this last consequence was intelligible enough, for the ultimate foundation of all claims of the slavocracy was the principle that the states had reserved their full sovereignty with respect to slavery - the importation of slaves alone excepted. In order to open all the territories to slavery he had, in the name of the supreme court, to interpret into the constitution principles which overthrew the fundamental principle of the slavocracy. Even if the Dred Scott decision had met with no opposition from any quarter whatever, it could not possibly be abided by, on this account: the supremacy of the slave-holding interest over the Union, based upon state sovereignty, could not but ultimately develop into a demand for the unconditional nationalization of slavery.

Alexander H. Stephens frankly admitted that the Dred Scott decision would never have been made if the agitation and discussion of the slavery question had not preceded it, and brought to light the clear principles on which it is based. These were, therefore, new principles of which the framers of the constitution and those who, in the earlier decades of its history had, as legislators, presidents and judges, to apply them, knew nothing.

[blocks in formation]

Yet, on this decision, Stephens claimed the fate of the country hung.1

What then had become of the superhuman wisdom of the "fathers," and what did the hyperwise politicians think they might not venture with the common sense of the people? The third generation since the adoption of the constitution had entered on the stage, and now a few aged judges had to save the country thanks to the light obtained by the politicians - by overthrowing what had hitherto been considered constitutional law and what had always, up to the most recent time, been enforced in the legislation of the land. Even if the question had come before the supreme court, in such a way that it must give a judgment, and if all the eight associate justices had unqualifiedly agreed to every word of Taney, the decision would have been a political enormity. If the former condition existed, political considerations neither could nor should have been excluded, but they must bring the judges to subordinate their own legal views to the constitutional law which had hitherto been in force, simply because, for almost seventy years, it had been the constitutional law actually accepted; for the history of the country could not be altered by judicial decree; and it was as impossible to change the actual conditions which had grown up under this constitutional law as it was to allow them to continue in a constitutional state with all their practical and legal consequences, while declaring their utter legal nullity. But not only was there no need

1"On the principle (of the Dred Scott decision) depended . . . in all probability the destiny of this country. And who is vain enough to suppose that the Dred Scott decision would have been made but for the agitation and discussion which preceded it, and the sound clear principles which that discussion brought to light." August 2, 1859, in Augusta, Ga. Cleveland, Al. H. Stephens, in Public and Private, with Letters and Speeches, p. 644.


of the decree, but it was against right and issued confessedly on political grounds. The opinions of the majority differed from one another in their argumentation, and to some extent in their conclusions, so widely that, taken together, they constituted an inextricable tangle, and two of the judges not only opposed the chief justice on one. point after another, but the severest moral condemnation could be heard in their juridico-historical deductions, spite of their calmness and strict pragmatism. How could the opposition fail to look upon the judgment, legally as an invalid usurpation and as a perversion of the law, never to be recognized, politically as an absurd and bold assumption, and morally as an unparalleled prostitution of the judicial ermine? The supreme court of the United States had wished to put an end to the controversy, and all it did was to add fuel to the flames which had already risen so high during the presidential campaign, and to drag itself down into the dirt, in the eyes of one-half the people. The last strong bulwark against the revolutionary spirit awakened by the triumphs achieved by the slavocracy and its northern following was broken down.

The senate, or a committee of the senate, in its name, sent thousands of copies of the opinion, without delay, throughout the country. The republicans might rejoice that, from this place and in so forcible a manner, evidence was immediately borne before the whole people, that what appeared in the garb of a judicial decree was, in reality, only a campaign document. Of its own free will, the supreme court of the United States had taken the initiative for the democratic party in the sense of the radical southern wing, and sounds of jubilation from the halls of the senate announced the great fact to the entire country.





The Washington correspondent of the Charleston Mercury had said of Buchanan, in a report on the cabinet which Polk had formed: "He is known to be an able, moderate old Hunker- very timid and hates trouble." The twelve years which had passed since then had thinned and bleached Buchanan's hair, and now a glance at the full, closely shaved face sufficed to convince one of the correctness of this description. In private life he could unquestionably knock at every door with the assurance of being accorded an honest welcome; for his carriage and stately form, no less than the expression of his not unremarkable countenance, showed him at once to be a gentleman, even to the unpracticed eye. In the line that lay over his heavily arched brows above his clear, bright eyes, unstudied dignity and self-consciousness too highly strung vied with each other for the mastery, but he neither awed nor repelled one, for the good humor and the enjoyment of physical comfort stamped on the lower half of his face, and his broad, double chin, acted as a counterpoise to it. One could believe his admiring friends that the figure he cut at the court of Queen Victoria met with the applause of even the exacting English aristocracy, and that his skill and tact as a diplomate were recognized by English statesmen; while the fact that, at the well-provided table and the chatty tea, he was a stimulating and winning talker-too inclined to teach, at times did not fail to make him some enemies. But the person who, judging from Buchanan's appearance, saw in him a great statesman, must have

« PreviousContinue »