43. Dred Scott Decision Reviewed (1857)

BY THOMAS HART BENTON

Benton, after thirty years of continuous service as senator from Missouri (a state admitted by the Missouri Compromise), was dropped as not pliable enough for proslavery service. He was then in the House for two years, and fought the KansasNebraska Bill. In 1857 he was in retirement, but he could not keep silent on what seemed to him a decision contrary to the facts of history and to the undisputed practice of the government. - For Benton, see Theodore Roosevelt, Life of Thomas Hart Benton; Contemporaries, III, No. 189. — Bibliography as in No. 41 above.

HE power of the Court is judicial

THE

so declared in the Constitution; and so held in theory, if not in practice. It is limited to cases "in law and equity;" and though sometimes encroaching upon political subjects, it is without right, without authority, and without the means of enforcing its decisions. It can issue no mandamus to Congress, or the people, nor punish them for disregarding its decisions, or even attacking them. Far from being bound by their decisions, Congress may proceed criminally against the judges for making them, when deemed criminally wrong one house impeach and the other try: as done in the famous case of Judge Chase.

In assuming to decide these questions, (Constitutionality of the Missouri Compromise, and the self-extension of the Constitution to Territories,) — it is believed the Court committed two great errors: first, in the assumption to try such questions: secondly, in deciding them as they did. And it is certain that the decisions are contrary to the uniform action of all the departments of the government one of them for thirty-six years; and the other for seventy years; and in their effects upon each are equivalent to an alteration of the Constitution, by inserting new clauses in it, which could not have been put in it at the time that instrument was made, nor at any time since, nor now.

The Missouri Compromise act was a "political enactment," made by the political power, for reasons founded in national policy, enlarged and liberal, of which it was the proper judge and which was not to be reversed afterwards by judicial interpretation of words and phrases.

Doubtless the Court was actuated by the most laudable motives in undertaking, while settling an individual controversy, to pass from the private rights of an individual to the public rights of the whole body of the people; and, in endeavoring to settle, by a judicial decision, a political question which engrosses and distracts the country: but the undertaking was beyond its competency, both legally and potentially.

no ma

It had no right to decide no means to enforce the decision chinery to carry it into effect — no penalties of fines or jails to enforce it: and the event has corresponded with these inabilities. Far from settling the question, the opinion itself has become a new question, more virulent than the former! has become the very watchword of parties has gone into party creeds and platforms-bringing the Court itself into the political field — and condemning all future appointments of federal judges, (and the elections of those who make the appointments, and of those who can multiply judges by creating new districts and circuits,) to the test of these decisions. This being the case, and the evil now actually upon us, there is no resource but to face it — to face this new question examine its foundations- show its errors; and rely upon reason and intelligence to work out a safe deliverance for the country. Repulsing jurisdiction of the original case, and dismissing it for want of right to try it, there would certainly be a difficulty in getting at its merits at the merits of the dismissed case itself; and, certainly, still greater difficulty in getting at the merits of two great political questions which lie so far beyond it. The Court evidently felt this difficulty, and worked sedulously to surmount it — sedulously, at building the bridge, long and slender upon which the majority of the judges crossed the wide and deep gulf which separated the personal rights of Dred Scott and his family from the political institutions and the political rights of the whole body of the American people. . . .

. . . In the acquisition of Louisiana came the first new territory to the United States, and over it Congress exercised the same power that it had done over the original territory. It saw no difference between the old and new, as the Court has done, and governed both, independently of the Constitution, and incompatibly with it, and by virtue of the same right-Sovereignty and Proprietorship! the right converted into a duty, and only limited by the terms of the grant in each case.

Louisiana was acquired in the spring of 1803: an extra session of Congress... in October . . . passed an act . . . providing for a temporary government: and which was in these words:

"That until the expiration of the present session of Congress, unless provision for the temporary government of the said territories be sooner made by Congress, all the military, civil and judicial powers exercised by the officers of the existing government of the same, shall be vested in such persons, and shall be exercised in such manner, as the President of the United States shall direct for maintaining and protecting the inhabitants of Louisiana in the free enjoyment of their liberty, property and religion."

[1857

Nothing could be more incompatible with our Constitution than such a government- a mere emanation of Spanish despotism. . . . . . It was a royal despotic Government, and every body knew it; and no one thought of testing it by the Constitution (some few new members in the House excepted) than by the Koran.

...

As early as November 28th, Mr. Breckenridge, always a coadjutor of Mr. Jefferson, submitted a resolution in the Senate to raise a committee to prepare a form of government for Louisiana. . . . contains three provisions on the subject of slaves: 1. That no one shall This [bill] be imported into the Territory from foreign parts. be carried into it who had been imported into the United States since 2. That no one shall the first day of May, 1798. 3. That no one shall be carried into it except by the owner, and for his own use as a settler; the penalty in being a fine upon the violator of the law, and freedom to the slave. . . every instance These three prohibitions certainly amount to legislating upon slavery in a Territory, and that a new Territory, acquired since the formation. of the Constitution, and without the aid of compacts with any State. . . .

. . . The Supreme Court makes a great difference between these two classes of territories, and a corresponding difference in the power of Congress with respect to them, and to the prejudice of the new Territory. The Congress of 1803-'4 did not see this difference; and acting upon a sense of plenary authority, it extended the ordinance across the Mississippi - sent the governor and judges of Indiana (for Indiana had then become a Territory)- sent this governor (William Henry Harrison) and the three Indiana judges across the Mississippi river, to administer the ordinance of '87 in that upper half of Louisiana.

Strong as was the course of Congress in the act taking possession of Louisiana, and continuing therein the Spanish government under American officers, it was repeated, in all its extent, sixteen years afterwards, on the acquisition of Florida. . . .

...

. . . It was at the session of 1818-'19 that the Missouri Territory . applied through her Territorial Legislature for an Act of Congress to enable her to hold a convention for the formation of a State Constitution, preparatory to the formal application for admission into the Union. The bill had been perfected, its details adjusted, and was upon its last reading, when a motion was made by Mr. James Tallmadge, of New York, to impose a restriction on the State in relation to slavery, to restrain her from the future admission of slavery within her borders.

the eventful question was called, and resulted 134 for the com

promise to 42 against it—a majority of three to one, and eight over. Such a vote was a real compromise! a surrender on the part of the restrictionists, of strong feeling to a sense of duty to the country! a settlement of a distracting territorial question upon the basis of mutual concession, and according to the principles of the ordinance of 1787. Such a measure may appear on the statute book as a mere act of Congress; and lawyers may plead its repealability: but to those who were cotemporary with the event, and saw the sacrifice of feeling, or prejudice, which was made, and the loss of popularity incurred, and how great was the danger of the country from which it saved us, it becomes a national compact, founded on considerations higher than money: and which good faith and the harmony and stability of the Union deserved. to be cherished next after the Constitution.

Of the 42 who voted against the compromise, there was not one who stated a constitutional objection: all that stated reasons for their votes, gave those of expediency among others that it was an unequal division, which was true, but the fault of the South; for, while contending for their share in Louisiana, they were giving away nearly all below 36° 30' to the King of Spain. There being no tie, the speaker (Mr. Clay) could not vote; but his exertions were as zealous and active in support of it, as indispensable to the pacification of the country.

From Congress the bill went to the President for his approval; and there it underwent a scrutiny which brought out the sense both of the President and his cabinet upon the precise point which has received the condemnation of the Supreme Court, and exactly contrary to the Court's decision. There was a word in the restrictive clause which, taken by itself and without reference to its context, might be construed as extending the slavery prohibition beyond the territorial condition of the country to which it attached might be understood to extend it to the State form. It was the word "forever." Mr. Monroe took the opinion of his cabinet upon the import of this word, dividing his inquiry into two questions - whether the word would apply the restriction to Territories after they became States? and whether Congress had a right to impose the restriction upon a Territory? Upon these two questions, the opinion of the cabinet was unanimous - negatively, on the first; affirmatively, on the other. . . .

[Thomas H. Benton], Historical and Legal Examination

of the Decision of the Supreme Court of the United States in the Dred Scott Case (New York, 1857), 4-96 passim.

44. "A House Divided against Itself cannot Stand"

(1858)

BY ABRAHAM LINCOLN

Lincoln was scarcely known outside of Illinois when he delivered the oration from which this extract is taken. The occasion was his nomination to the United States Senate by the Republican state convention. The simplicity, cogency, and fitness of this speech, and of his speeches in the joint debates with Douglas, made him not only a national character but a candidate for the Republican nomination for president. Of all the party leaders in 1858 he saw most clearly the inevitable trend of events, and gave it expression in a radical doctrine. — For Lincoln, see Henry Matson, References for Literary Workers, 116–117. — Bibliography: Channing and Hart, Guide, § 203.

F we could first know where we are, and whither we are tend

are now far into the fifth year since a policy was initiated with the avowed object and confident promise of putting an end to slavery agitation. Under the operation of that policy, that agitation has not only not ceased, but has constantly augmented. In my opinion, it will not cease until a crisis shall have been reached and passed. "A house divided against itself cannot stand." I believe this government cannot endure permanently half slave and half free. I do not expect the Union to be dissolved I do not expect the house to fall - but I do expect it will cease to be divided. It will become all one thing, or all the other. Either the opponents of slavery will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its advocates will push it forward till it shall become alike lawful in all the States, old as well as new, North as well as South.

Have we no tendency to the latter condition?

Let any one who doubts carefully contemplate that now almost complete legal combination - piece of machinery, so to speak — compounded of the Nebraska doctrine and the Dred Scott decision. Let him consider not only what work the machinery is adapted to do, and how well adapted; but also let him study the history of its construction, and trace, if he can, or rather fail, if he can, to trace the evidences of design and concert of action among its chief architects, from the beginning.

The new year of 1854 found slavery excluded from more than half States by State constitutions, and from most of the national territory by congressional prohibition. Four days later commenced the