The Half Has Never Been Told: Slavery and the Making of American Capitalism (76 page)

Now, concluded southern hard-liners
like James Mason, Kansas controlled the “destiny” of the South. Yet free-soil settlers already outnumbered pro-slave ones on the plains. Supposedly, “nine-tenths of the whole number of [land] claimants” who had squatted on the Kansas public domain by the summer of 1854 planned to vote to exclude slavery. That fall, President Pierce established a territorial government staffed by southerners and
compliant northerners, such as Governor Andrew Reeder, who told southern congressmen that he hoped to bring slaves to Kansas himself. He scheduled an 1855 election for the territorial legislature. Senator Atchison urged white Missourians to “do their duty” and secure “peace and quiet” at the Kansas ballot box. The 5,000 Missourians who crossed the border to vote illegally accounted for 75 percent
of the ballots. All but one of the legislators elected were proslavery. Reeder, feeling betrayed by the way southern radicals had overturned even the façade of popular sovereignty, resigned.
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Meanwhile, the northern press and Republicans in Congress charged that Democrats had adopted the idea that “the subjugation of white freemen may be necessary that African slavery may succeed” in Kansas.
In response to electoral cheating, Amos Lawrence used his textile-mill fortune to fund the “New England Emigrant Aid Company,” an operation that paid free-state settlers to move to Kansas—and armed them. In contrast, although an Alabama editor claimed that “every mail brings tidings of the gallant young men buckling on their armor for the struggle that is to give Kansas to the South,” few southern
slaveholders were willing to take that risk. Instead,
slavery expansionists relied on the Missourians—whom northerners called “border ruffians” and “pukes”—to win the battle through intimidation and illegal voting.
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Above all, slavery expansionists counted on their control over the levers of power in Washington to make the results of border-ruffian elections permanent. Stephen Douglas was already
obediently pushing Kansas statehood through Congress. It looked like another fraudulent election would soon make Kansas the sixteenth slave state. On May 21, 1856, proslavery forces sacked and burned the free-soil town of Lawrence. In response, Massachusetts Senator Charles Sumner gave an outraged speech in which he denounced the administration, Douglas, and the South for what he called “the
crime against Kansas.” He threw in what sounded like personal attacks on Senator Andrew Butler, of the F Street mess. A couple of days later, Butler’s South Carolina cousin, US representative Preston Brooks, assaulted Sumner at his Senate desk with a cane, beating the Massachusetts man into bloodied unconsciousness. “We much regret that the insolence of such men as Sumner renders such scenes occasionally
necessary” to defend one’s honor, wrote a Georgia editor. Northern newspapers, even racist ones like the
New York Herald
, took a different view—that southern “slave lords” respected free-state whites so little that they would inflict “nigger-driving” whippings on them, even in the Senate.
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During 1855, slave-state settlers had murdered several Kansas free-soil men as part of a campaign of intimidation.
“Thick-headed bullies in the West [think] that the Northern and Eastern men will not fight. Never was a greater mistake,” wrote one free-soil editor, for “the Free State men in Kansas will fight before they are disfranchised. . . . Mark the word.” When a Kansas free-soil leader counseled patience, recently arrived Connecticut native John Brown called him “a perfect old woman.” Brown brought
his many sons, the financial backing of wealthy New York land magnate Gerrit Smith, and also weapons. On the night of May 24, 1856, Brown and his sons went on a killing spree. They stormed into proslavery cabins along Kansas’s Pottawatomie Creek, pulled men out, and murdered them execution-style. Brown, who believed he was the agent of a vengeful God who hated slavery, intended the murders as
exemplary political terrorism. The inevitable eruption of violence would force free-state men to fight for their convictions. Indeed, settlers spent the summer hunting each other across the territory. While another governor fled, nearby US Army units blocked armed northerners from entering Kansas. By the summer of 1856, in-migration had virtually stopped.
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THE “BLEEDING KANSAS” DRAMA
took place
against the backdrop of the 1856 presidential election. This was the first one contested by the brand new Republican Party, which nominated John Fremont. Although he was the grandson of a Virginia planter, Fremont ran on a platform focused on the single issue of blocking slavery’s further expansion. The Americans, or Know-Nothings, who nominated ex-president Millard Fillmore of New York, were
split between their northern and southern wings. General economic prosperity also had lessened the perceived relevance of their anti-immigrant message. The Democratic convention rejected both the disgraced Franklin Pierce and the compromised Stephen Douglas in favor of Pennsylvanian James Buchanan, who had spent the past four years overseas as an ambassador. But southern delegates knew him well. They
expected him to cave to their dictation.
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During the summer of 1856, local Democratic activists began to report that party members were returning to the fold. The states in which slavery was legal contained 120 of the 149 electoral votes needed for victory. The southern Whigs were gone, so the Democrats could expect to win all 120 slave-state votes. This left them needing only a few northern
states for victory. On election day, they managed to win Pennsylvania (Buchanan’s home state), New Jersey, Indiana, and Illinois—and thus, the presidency. But southern expansionists could see that the old balance was gone. Population shifts meant that a Republican president could be elected without a single southern electoral vote. And Buchanan had won a minority of the popular vote, even though
Frémont had received only 600 votes from southerners brave or inattentive enough to cast their ballots for a sectional party aimed at their section.
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Some northern Democrats, meanwhile, convinced themselves that Buchanan would be less subservient to the slave power than Pierce. They misread the willingness of the southerners to implement strategies aimed at forcing the entire nation to accept
slave property as a truly national institution while they still had the leverage to extract such an outcome. Harriet and Dred Scott, however, had a much clearer sense of what they were dealing with. In 1852, the Missouri’s supreme court’s proslavery activist justices—reversing their own precedents in dozens of successful freedom suits—ruled that territories’ antislavery laws did not overrule the
property claims of Eliza Emerson, a Missouri citizen. The Scotts appealed to federal court, and Emerson handed off her property claim to her brother, changing the case’s name to
Dred Scott v. Sanford
. It reached the US Supreme Court in 1856. Some of the questions were technical, but the biggest issues were as timely as it was
possible for a case to be. Did Congress have the power to pass the slavery
restrictions of the Missouri Compromise? Could the federal government extinguish or limit enslavers’ property claims?
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Over the past thirty years, a series of presidents, starting with Andrew Jackson, had loaded the Court with a southern majority. Although Chief Justice Roger B. Taney had voluntarily manumitted all his human property decades earlier, the Court under his leadership, in cases
ranging back to
Prigg v. Pennsylvania
and beyond, had steadily moved toward establishing enslavers’ property claims as a fundamental, natural right. This Court increasingly ranked the property claims of entrepreneurial, mobile enslavers higher than the rights of legislative majorities—even congressional ones. The Court was coming to accept the claims, enunciated by Calhoun and others, that slaveholders’
property rights meant that neither the federal nor the state governments could limit enslavers’ mobility, and that neither could refuse to help enforce enslavers’ power over forced migrants or fugitives.
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On March 4, 1857, James Buchanan took the oath of office—the fifteenth consecutive president for whom the issue of forced migration had been an irritant. In his inaugural address, Buchanan
announced that there was no need for Americans to feel agitated about Kansas, or about whether it had been just for Congress to revoke the Missouri Compromise. For soon the Supreme Court would settle all key questions about slavery and expansion. Two days later, Taney’s Court issued a decision. Six of the nine justices agreed that the Scotts had no standing to sue for their freedom. Taney himself
delivered an opinion that laid out the case against the Scotts’ freedom in its most extreme form, including a claim that the Court’s majority agreed with him that the Missouri Compromise was unconstitutional. While Justice Peter Daniel (a Virginian) restated the “common-property” doctrine to explain why Congress could not exclude slavery from territories, Taney’s argument was a sophisticated and lengthy
rendering of Calhounian substantive due process. “The Federal Government can exercise no power over person or property” belonging to a migrant into the territories, including the forced migrants they brought with them, “beyond what [the Constitution] confers, nor lawfully deny any right which it has reserved”—including the right to have one’s property protected from unreasonable search and
seizure, such as by legislative emancipation.
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The decision immediately came in for massive criticism. Many Republicans rejected as illegitimate the Court’s attempt to overrule majority opposition to the expansion of slavery. They insisted that the Constitution gave Congress the power to make basic law for the territories. Some rejected the
Court itself as illegitimate. Horace Greeley’s
New York Tribune
, the most famous paper in the United States at the time, described the Court’s decision as “false statements and shallow sophistries” no better than what one could gather in any “Washington Bar-room.” The concept of due process had been around since the Magna Carta, one critic pointed out, but only in the 1830s had anyone discovered that it prevented legislatures from abolishing the
use of human beings as property.
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Historians have generally sustained the dissenters’ insistence that Taney was incorrect to claim that the Scotts could not sue because no people of African descent had ever been accounted as US citizens. Indeed, at least five states clearly counted free African Americans as citizens in 1789 when they ratified the Constitution. On other grounds, historians and
contemporary critics alike are less persuasive. For instance, some insist that the due-process clause in the Fifth Amendment, which mentions “property,” does not include slave property, and hence does not protect slavery from seizure by congressional lawmaking. But as Justice Peter Daniel pointed out, with its fugitive slave clause the Constitution does more to specify enslaved people as a specific
type of “property” than it does for any other kind. In such a case it seems less reasonable to think that the enslavers who wrote the due-process clause would not have intended it to encompass enslaved human beings.

Some critics insisted that in his most sweeping claims Taney did not speak for the whole Court. However, the fact is that he could assemble a majority of the justices behind almost
every conclusion. Other critics insisted that Taney wrote as a mere partisan.
Dred Scott
was emphatically a political decision, of course, but then, so are most Court decisions. The justices could easily have ruled against the Scotts on procedural grounds and left the deeper issues alone. Instead, like the widow Eliza Emerson, and like the congressmen who demanded Kansas-Nebraska, Taney and his
Court allies sought out a constitutional Armageddon: a final battle to settle all questions and usher in an age in which the enslaved had no allies. They wanted to stand in the place of God, hear a Kentucky woman’s prayer—Will I live to see the end?—and reply: No, you will not.
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Moreover, Taney and his allies made the
Dred Scott
decision partisan in favor of everybody but African Americans and
Republicans. Taney’s attack on black citizenship recycled Stephen Douglas’s rhetorical strategy of focusing northern white anger on black people. When the New Orleans
Picayune
said
Scott v. Sandford
(the court misspelled the enslaver’s last name) rendered unconstitutional “the whole basis of the Black Republican organization,” northern Democratic newspapers concurred: the Court had shattered
“the anti-slavery platform of the late great Northern Republican party into atoms,” said the
New York Herald
. While some furious Republicans advocated extralegal action to overrule the use of the judicial branch to advance a minority’s political agenda, they should not have been surprised by the court’s decision. The decision reaffirmed one of the most significant traditions in the history of the
United States: the construction of white people’s futures on the backs and from the hands of enslaved African Americans, a process piloted by southerners, who always found many northern allies. The Constitution’s most important compromises had been created by enslavers and their closest northern allies to sustain slavery’s expansion. The constitutional system had sustained that process for seventy
years. And Taney’s Court was insisting more clearly than ever that the price of union was still the right of enslavers to treat enslaved people as fully chattel property.
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“
All the powers on earth seem rapidly combining against him. Mammon is after him
. . .
philosophy follows, and the Theology of the day is fast joining the cry
”—and Law had brought Dred and Harriet Scott and their daughters
down as prey. So said ex-congressman Abraham Lincoln in an Illinois speech in the summer of 1857. He pushed his listeners to see how enslavers were engineering an ever-tighter perimeter around 4 million human beings; collectively a Gulliver tied down, stretched out on a continent that was now to be one giant whipping-machine. “
One after another they have closed the heavy iron doors upon him
,”
said Lincoln, continuing the metaphor. Partisan politics, the constitution, half the churches in the country, and a vast array of business interests had all been twisted and leveraged to bind the enslaved as if in a prison cell “
bolted with a lock of a hundred keys, which can never be unlocked without the concurrence of every key; the keys in the hands of a hundred different men, and they scattered to a hundred different and distant places; and they stand musing as to what invention, in all the dominions of mind and matter, can be produced to make the impossibility of his escape more complete than it is
” (italics added).
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