The Life of Stephen A. Douglas

by William Gardner

Chapter X. Popular Sovereignty in the Supreme Court.

The anger of the world was rising against American slavery. It was confessedly a shocking anomaly in our system of universal freedom and democratic equality. The people of the slave States were inflexibly resolved to maintain and extend it in defiance of the rising sentiment of the age. For many years they had succeeded in holding their ground and stifling the anti-slavery agitation. They had vigilantly kept control of the Government. During sixty of the first sixty-eight years the presidential chair had been occupied by Southern men or their dependents. The Senate had uniformly, and the House usually, been under their sway. The Supreme Court had also been composed of Southern men. Now that slavery was forced to fight for its life, the South with increased energy sought the active support of all the departments of Government. Pierce was its humble servant. The efficient and imperious Douglas was serving it in the Senate, and Cass was an eager rival. The Northern Democracy followed their lead. A majority of the Supreme Court were zealous advocates of slavery. It was unfortunate for the South, and for Douglas, that the champions of Southern rights on the bench and their advocates in Congress could not have understood each other in advance. They were seeking to plant slavery on a safe foundation and gird it round with impregnable defenses. Douglas had promulgated the doctrine of squatter sovereignty with which the South was not satisfied. It was possible for the Court to devise a safer remedy for the threatened dangers.

In 1834, there was an army surgeon named Dr. Emmerson living in Missouri who owned a slave named Dred Scott. He was transferred to Fort Snelling in the Territory of Wisconsin and took his slave with him, but in 1838 he returned with him to his former home. He then sold Scott to a man named Sanford, who resided in New York, but kept his slaves in Missouri. In 1854 the slave brought an action in the United States Circuit Court of Missouri to recover his freedom, on the ground that he had been voluntarily taken into the Territory of Wisconsin, where, by the act of Congress known as the Missouri Compromise, slavery was prohibited. His case rested upon the rule that slavery, being the creature of positive municipal law, had no legal existence beyond the limits of the sovereignty creating or recognizing it. The law of Missouri establishing slavery was of no efficacy in Wisconsin. Hence, it was urged, when Dred was taken to that Territory, the relation of master and slave ended and he became a free man.

Upon its merit the case presented but one question: Was slavery forbidden in Wisconsin? There rose, however, a preliminary question of great importance. To give the Federal Court jurisdiction it was necessary to show that the plaintiff and defendant were citizens of different States. Scott alleged that he was a citizen of Missouri and Sanford a citizen of New York. The answer denied the jurisdiction of the Court for the reason that Scott was not a citizen of any State, being a negro slave, and hence not entitled to maintain his action. The Circuit Court overruled this plea, but held Scott to be still a slave, notwithstanding his sojourn in Wisconsin, and awarded him to Sandford. The case was taken to the Supreme Court and there argued by lawyers of great ability and learning. The Court found unusual difficulties in it, held it under advisement during the exciting summer of 1856, and directed a re-argument at the December term. On March 6th, 1857, two days after the inauguration of Buchanan, the Judges delivered their memorable opinions.

At this time the Court consisted of five Southern Democrats, two Northern Democrats, one Whig and one Republican. Chief Justice Taney wrote the opinion of the Court, and did it in a manner likely to preserve his name from early oblivion. Judges McLean and Curtis filed dissenting opinions.

The Court, after holding that Scott could not maintain his action for want of citizenship, decided among other things that: "Whatever the General Government acquires it acquires for the benefit of the people of the several States who created it. It is their trustee, acting for them and charged with the duty of promoting the interests of the whole people of the Union. * * * * The right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like an ordinary article of merchandise and property, is guaranteed to the citizens of the United States. * * * * The Government * * * is pledged to protect it in all future time. * * * * The act of Congress which prohibits a citizen from holding and owning property of this kind in the territory of the United States north of the line mentioned (36 degrees 30 minutes) is not warranted by the Constitution and is therefore void. * * * * * If Congress cannot do this it will be admitted that it could not authorize a territorial legislature to do it."

Thousands of copies of the opinion of Judge Taney were printed and distributed among the people by the Democrats who, at first, were so elated over the blow dealt to the Republican fanatics that they overlooked the fact that the decision was even more fatal to the favorite doctrine of the Northern wing of their own party.

The dissenting opinions were printed in enormous numbers by Republican committees and distributed among the anti-slavery people of the Northern and Middle States. Far from settling the controversy, the powerful conflicting opinions confirmed the already inveterate prejudices and disclosed with scientific clearness the fact, long dimly felt, that there existed two fundamentally different and irreconcilably hostile theories of government among the people which must sooner or later grapple for the mastery. Naturally among Northern Democrats the first emotion on hearing of the decision was exultation over the disastrous reverse suffered by the Republicans, whose whole political creed seemed annihilated. They had declared in sounding phrase that it was the duty of Congress to wipe from the Territories those twin relics of barbarism, slavery and polygamy; and promptly the Supreme Court had decided that Congress had no such power. But it soon grew uncomfortably clear to them that while the decision upset the favorite dogma of the Republicans, it was utterly inconsistent with the doctrine of popular sovereignty, the fundamental tenet of Northern Democratic faith. The decision was not only a victory of the Democrats over the Republicans, but a complete victory of the Southern slave-holding Democracy over that of the free North.

To Douglas the situation in which this left his party was disastrous. Restlessly active and efficient as he had been in the practical management of political affairs, his distinctive achievement had been the powerful advocacy of the doctrine of popular sovereignty, of which, if not the original author, he was at least the chief sponsor. With this doctrine his fame as a statesman was indissolubly linked. On its success the unity of the Northern wing of his party depended; on which hung his hopes of victory.

Two days before the opinion was announced President Buchanan in his inaugural address reminded the people that the great question which had agitated them so long would soon be settled by the Supreme court and bespoke general acquiescence in its decision. This unhappy allusion gave rise to the unpleasant suspicion that the relation between the new President and the Supreme Court in their common service of the South was unduly intimate.

Had Douglas been great enough to sink the politician in the statesman, he would now have broken with the Southern wing of his party, which had contemptuously repudiated his entire system of political doctrines; he would have rejected the new dogma imposed upon his party by the Southern dictators and led the assault upon this new creed, which was not only fatal to himself as a National statesman, but could not fail ultimately to prove fatal to his party and involve his country in the horrors of civil war. His squatter sovereignty was pitiful enough. But this new doctrine, announced by the Supreme Court, and approved by the President and his party, stripped the settlers in the Territories of all semblance of sovereignty and planted slavery among them by the self-acting energy of the Constitution, in utter disregard of their wishes. On the most important question then pending his party had reached a conclusion which he believed to be utterly wrong. But it was his opinion that moral ideas had no place in politics. He could not break with the powerful party which he had led so long. He could not unqualifiedly endorse the new doctrine without stultifying himself. He attempted the impossible task of reconciling the new creed with that which he had preached in the past.

The United States Grand Jury at Springfield invited him to address the people of that city on the questions of the time. He spoke on the 12th of June, 1857, to a large and enthusiastic audience. He assured the people that he cordially accepted the decision and that it was in perfect harmony with his favorite doctrine of squatter sovereignty. The master's right to his slave in the Territories he admitted was guaranteed by the Constitution and neither Congress nor the legislature could interfere with it; yet practically this right was worthless unless sustained, protected and enforced by appropriate police regulations and local legislation prescribing adequate remedies for its violation. These regulations and remedies must depend entirely upon the will and wishes of the people of the Territory, as they could only be prescribed by the local legislature. Hence, the great principle of popular sovereignty and self-government was sustained and firmly established by the authority of the decision.

Perhaps, as pointed out by a recent historian, it would have been wiser for Douglas to have planted himself on the sound legal proposition that the only question decided by the Court was that it had no jurisdiction of the cause and that everything in the opinion beyond this was mere obiter dicta determining nothing. But it was no easy matter for a politician in 1857 to explain to a popular audience that a small fraction of the opinion of the highest Court was binding, while the remainder was merely the private opinion of the Judges on a matter not before them. Had Douglas been defending his opinions before a bench of trained jurists he might have safely rested his case on this sound but technical rule. He afterwards did so justify his opinions in the Senate. An experience politician determined to carry a popular election in a dangerous crisis might well hesitate to attempt so doubtful an experiment. History would have less temptation to call him a demagogue had he pursued that course. But we may well doubt whether, considered as a problem of practical politics, he was not wise in depending on his ingenious sophistry, rather than on this sound legal proposition.

Two weeks after his speech Lincoln addressed the people of Springfield in reply, pointing out the fallacy of Douglas' chief argument. But Lincoln was still an obscure lawyer; Douglas was the omnipotent Senator whose ipse dixit was final and carried conviction to the uncritical multitude.