The History of the Confederate War, Its Causes and Its Conduct, Volume 1 (of 2) / A Narrative and Critical History

by George Cary Eggleston

Dred Scott remained however in the position of a slave and after a time he was taken back to Missouri. There he was sold to a new master whom he presently sued for assault on the ground that his former master had in effect set him free by voluntarily taking him into a free state, and that therefore he was not liable to sale or to a chastisement at the hands of a master.

The negro won in the lower courts but was defeated upon appeal. Later, circumstances enabled him to bring suit in the United States Court, and finally the case went on appeal to the Supreme Court of the United States. The questions directly and indirectly involved in it were of so great national and political interest that four of the greatest constitutional lawyers in all the land volunteered to argue it—two of them on the one side and two upon the other. The argument was a contest of intellectual giants with the whole country looking on and listening. At the end of it the judgment of the court was rendered by Chief Justice Taney in March, 1857. The decision negatived all of Dred Scott's contentions and it affirmed principles that were even more offensive to Northern sentiment than its negations were. It amounted in fact to a judgment that state laws setting free such slaves as might be brought into the states concerned by voluntary act of their masters were null and void. It expressly declared unconstitutional that part of the Missouri Compromise which forbade slavery in territories north of 36° 30´ north latitude.

So completely did the court decide upon the slavery side of the question that Thomas H. Benton, the great Democratic senator from Missouri, characterized this deliberate and very carefully considered judgment of the Supreme Court as one which made slavery the organic law of the land with freedom as a casual exception.

The victory of the pro-slavery radicals was here complete. The decision gave them the definite judgment of that Supreme Court whose decisions rise above congressional enactment and set aside statutes,—that court from whose judgments there is nowhere any appeal to any other authority on earth—in behalf of their most extreme contentions.

If that decision had been accepted by the people, as the decisions of the Supreme Court usually are, it would indeed have made slavery a national institution subject only to such limitations as the individual states might impose upon it within their own borders and without interference with slaveholders who might choose to take their slaves into free states and hold them there.

But the victory of the slave advocates—complete as it was—gave them no practical advantage. Such a doctrine as that laid down by the court simply could not find acceptance in the minds of men at the North. Logically it ought not to have found acceptance with the ultra pro-slavery men of the South for the reason that it distinctly negatived that contention for states' rights and state sovereignty upon which they relied in their contest with their adversaries.

Unfortunately for them, in the course of his decision Chief Justice Taney used one unhappy phrase which gave even greater offense perhaps than the decision itself did. That phrase was in fact no part of the decision but was what the lawyers call an obiter dictum—a saying apart. It was a mere statement of what the Chief Justice believed to be a fact of history. It was not at all a ruling of the court. As an illustration of his meaning he made the perfectly true statement that before the time of the American Revolution—and he might have included a much later date—the negroes "had been regarded as beings of an inferior order and altogether unfit to associate with the white race either in social or political relations; and so far inferior that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit."

This statement of fact as to the attitude of the public mind toward the negro before the Revolution was entirely correct, as every educated reader knows, and as the history of the African slave-trade—carried on not only before the adoption of the Constitution but for a dozen years after 1808 when the constitutional prohibition of that nefarious traffic went into effect—perfectly and completely shows.

But Chief Justice Taney's simple statement of this historical fact was everywhere interpreted to be a part of his legal decision. This was natural enough under the circumstances for the reason that slavery itself, in behalf of which the decision seemed to have been rendered, rested solely upon the doctrine that a negro has no rights which the white man is bound to respect.

Even if this unfortunate phrase had not been used and even if it had not been misinterpreted as it was, the decision itself must of necessity have wrought something like a revolution in the thought of the Northern people. The most conservative among them had reconciled themselves to the existence of slavery in certain of the states upon the ground that each state had a right to legislate for itself upon that question and therefore that each state was alone responsible for its own legislation. They were startled now by the challenge of a Supreme Court decision which denied to them even this relief of conscience and even this liberty of individual state action. They were asked to accept the doctrine that slavery was a national institution against which state laws were futile except in a very limited way.