America and Its Peoples: A Mosaic in the Making

The caning of Sumner had repercussions in stife-torn Kansas.  John Brown, a devoted Bible-quoting Calvinist who believed he had a personal responsibility to overthrown slavery, announced that the time had come "to fight fire with fire" and "strike terror in the hearts of proslavery men." The next day, in reprisal for the 'sack of Lawrence' and the assault on Sumner, Brown and six companions dragged five proslavery men and boys from their beds at Pottawatomie Creek, spilt open their skulls with a sword, cut off their hands, and laid out their entrails.  A war of revenge erupted in Kansas.  A proslavery newspaper declared: "If murder and assassination is the program of the day, we are in favor of filling the bill." Columns of proslavery Southerners ransacked free farms, taking "horses and cattle and everything else they can lay hold of" while searching for Brown and the other "Potawattomie killers."  Armed bands looted enemy stores and farms.  At Osawatomie, proslavery forces attacked John Brown's headquarters, leaving a dozen men dead.  John Brown's men killed four Missourians, and proslavery forces retaliated by blockading the free towns of Topeka and Lawrence.  Before it was over, guerilla warfare in eastern Kansas left 200 dead.

On March 6, 1857, in a small room in the Capital basement, the Supreme Court finally decided a question that Congress had evaded for decades: whether Congress had the power to prohibit slavery in the territories. Repeatedly, Congress had declared that this was a constitutional question that the Supreme Court should settle.

The case originated in 1846, when a Missouri slave, Dred Scott, sued to gain his freedom. Scott argued that while he had been the slave of an army surgeon, he had lived for four years in Illinois, a free sate, and Wisconsin, a free territory, and that his residence on free soil had erased his slave status. In 1850 a Missouri court gave Scott his freedom, but two years later, the Missouri supreme court reversed this decision and returned Scott to slavery. Scott then appealed to the federal courts.

For five years, the case proceeded through the federal courts. It was argued before the Supreme Court in 1856, at precisely the time that Senator Charles Sumner was delivering his bitter attack on the slave power, “The Crime against Kansas.”

By a 7-2 margin, the Court ruled that Dred Scott had no right to sue in federal court, that the Missouri Compromise was unconstitutional, and that Congress had no right to exclude slavery from the territories.

All nine justices rendered separate opinions, but Chief Justice Taney delivered the opinion that expressed the position of the Court’s majority. His opinion represented a judicial defense of the most extreme proslavery position.

The chief justice made two sweepings rulings. The first was that Dred Scott had no right to sue in federal court because neither slaves nor fee blacks were citizens of the United States.

Second, Taney declared that Congress had no right to exclude slavery from federal territories since any law excluding slavery property from the territories was a violation of the Fifth Amendment prohibition against the seizure of property without due process of law. For the first time since Marbury v. Madison in 1803, the Court declared an act of Congress unconstitutional.

In a single decision, the Court sought to resolve all the major constitutional questions raised by slavery. It declared that the Declaration of Independence and the Bill of Rights were not intended to apply to African Americans. It stated that the Republican party platform – baring slavery from the western territories – was unconstitutional. And it ruled that Stephen Douglas’s doctrine of “popular sovereignty” – which stated that territorial governments had the power to prohibit slavery – was also unconstitutional.

Radical abolitionists called for secession. Many Republicans – including an Illinois politician named Abraham Lincoln – regarded the decision as part of a slave power conspiracy to legalize slavery throughout the United States.

The Dred Scott decision was a major political miscalculation. In its ruling, the Supreme Court sought to solve the slavery controversy once and for all. Instead the Court intensified sectional strife, undercut possible compromise solutions to the divisive issue of the expansion of slavery, and weakened the moral authority of the judiciary.

Late in 1857, President Buchanan faced a major test of his ability to suppress the slavery controversy.  In September, proslavery forces in Kansas met in Lecompton, the territorial capital, to draft a constitution that would bring Kansas into the Union as a slave state.  Recognizing that a proslavery constitution would be defeated in a free and fair election, proslavery delegates withheld the new state charter from the territory's voters.  Instead, they offered voters a referendum on whether they preferred "the constitution with slavery" or "the constitution without slavery."  In either case, however, the new constitution guaranteed slave ownership as a sacred right.  A Free Soiler described the proslavery proposal this way.  "Vote to take this arsenic with bread and butter, or without bread and butter."  Free Soilers boycotted the election and, as a result, "the constitution with slavery" was approved by a 6000-vote margin.

Attempts to enforce the new law provoked wholesale opposition. In Congress, a Free Soiler declared that it would be the same as 'murder' to return a fugitive to slavery. Eight northern states attempted to invalidate the law by enacting 'personal liberty' laws that forbade state officials from assisting in the return of runaways and extended the right of jury trial to fugitives. Southerners regarded these attempts to obstruct the return of runaways as a violation of the constitution and federal law.

The South's demand for an effective fugitive slave law was a major source of sectional tension. Efforts to enforce the law resulted in abuses that repelled many northern moderates. In one instance, a free man named James Hamlet was seized in New York and sent into slavery. Riots directed against the law broke out in many cities. In Christiana, Pennsylvania, in 1851, a gun battle broke out between abolitionists and slave catchers, and in Wisconsin, an abolitionist editor named Sherman M. Booth freed Joshua Glover, a fugitive slave, from a local jail. In Boston, federal marshals and 22 companies of state troops were needed to prevent a crowd from storming a courthouse to free a fugitive named Anthony Burns.