Balkinization: Close Enough for State Park Historical Society Work

Close Enough for State Park Historical Society Work

Michael Stokes Paulsen

Yesterday was my daughter's fourth grade class field trip! Not having a real job, I was able to go along. We bicycled down the Mississippi on a (rare) beautiful Minnesota spring day, to Fort Snelling. Among the presentations was a short talk about the Fort's "most famous residents," Dred and Harriet Scott. I listened with great interest -- and some amusement. Here is my rough paraphrase of the young guide's presentation. For Balkinization Fun: How many things are wrong with this picture? (Yes, you may participate even if you've written a book about the case.) :-)

" This [recreated] room is where Fort Snelling's most famous residents lived, Dred Scott and Harriet Scott. [Pictures held up.] They were slaves of Captain John Emerson, who was a surgeon. He brought them here from Missouri, which was a state that had slavery. This was Captain Emerson's kitchen, and the Scotts lived in this room, with the two daughters they had here. Those daughters became his slaves as well. Now, there weren't many options for slaves. They could run away, but they could be hunted down. But have any of you heard of the Underground Railroad? [brief discussion]. That was where people helped slaves escape to states in the north, where slavery was prohibited."

"Now Fort Snelling is in the north, but Minnesota wasn't a state yet. It was federal territory. Several years before, when Missouri was admitted as a state where slavery was permitted, Congress had passed a law saying that slavery would be illegal north of Missouri but legal south of Missouri. So Captain Emerson was breaking the law when he brought Dred and Harriet here, wasn't he?!"

"Now, when the Scotts got back to Missouri, they did something very brave. They sued the United States Government. They said that they should be free. But Missouri was a slave state. Do you think they could get a fair trial there? All the judges and the juries owned slaves! They lost their first trial. But then they appealed and had a second trial. But they lost that one too. Finally, they appealed to the U.S. Supreme Court. It took 11 years! And all that time, the family was in trouble, in hiding, and in jail. Now how old are you? 10? So the case took longer than you all have been alive, and all that time the Scotts were in hiding or in jail."

"Now it took a lot of money for them to get their case to the Supreme Court. They could have bought their own freedom, but instead they spent the money to take the case to the Supreme Court, because they knew their case would affect all slaves in the whole country. Whatever the Supreme Court decided would be a new law for the whole country. But you know what happened? The Supreme Court said that slavery had to be legal everywhere [and that the Missouri Compromise was unconstitutional]. So now there was going to be slavery everwhere, even in the northern states!"

"That led to a big war. Does anyone know what that war was called? That's right -- it was the Civil War, between the states that had slavery and the states that didn't have slavery. And after that war, which the North won, slavery was abolished by the Fourteenth Amendment."

"The Scotts lost their case, but they bought their freedom anyway [and lived happily ever after]."

I didn't want to be one of those parents -- you know the type. (Heck, maybe you are the type!) And there really was a lot of mostly-right, useful information, good for fourth graders, in the presentation. (It's not much worse than most textbooks I've seen, including several college and law school texts.) So I just sat there and smiled.

Then we went on the blacksmith shop, which was really cool. The guy made a nail, right there before our eyes! And I got to hang on to it, all the way back on the bike ride to the Dairy Queen!

Michael Stokes Paulsen

Posted 11:05 AM by Michael Stokes Paulsen [link]

Comments:

Was the Dred Scott decision applied to overcome the Somerset case (Lord Mansfield) in northern states regarding non-fugitive slaves having the choice of freedom?

# posted by

Shag from Brookline : 2:30 PM

Wasn't it the 13th Amendment that abolished slavery?

# posted by

Unknown : 6:52 PM

Uhh Scott didn't sue the United States?

# posted by

Armen Adzhemyan : 6:57 PM

It seems to me the most serious error was that the Dred Scott decision did not mandate slavery in northern states, but only in all the territories.

# posted by

Essayist-Laywer : 7:41 PM

Hmmm.How about the glowing lil' omission written in the (victors') narrative re: root causes of the ultimate decision to go to war?

As Abe himself said, "let South go? Then how shall we pay our bills?"

Same shit different century. From pre-Articles to the Const. Conv. to the civil war to the economic apartheid mislabeled "reconstruction" to the exploitation of the 9/10ths of Southerners who were not slave owners, to the ongoing meme as Southerners as rubes, the intersectional and sectarian divisions simply ran too deep, and still do, for what that's worth. It's commerce stupid.

Nothing said above should be confused with defense of a morally-reprehensible practice. But, in any event it was a practice on the wane (even in the second largest slave port: New York City), simply because the labor system proved a much more productive way of earning profits without that whole purchase and care-taking expense aspect.

BTW: I live in Western Iowa now, and see more Confederate flags in that (very!) Union state and in Eastern South Dakota than I saw in 15 years living in Montgomery, Alabama. Just a thought.

# posted by

Der Schatten : 7:43 AM

As Abe himself said, "let South go? Then how shall we pay our bills?"

That's a phony quote. You need to stop getting your "history" from Lew Rockwell.

As for the tired claim that the "root cause" of the War was not slavery, let's let South Carolina speak for itself:

"The ends for which the Constitution was framed are declared by itself to be "to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity."
These ends it endeavored to accomplish by a Federal Government, in which each State was recognized as an equal, and had separate control over its own institutions. The right of property in slaves was recognized by giving to free persons distinct political rights, by giving them the right to represent, and burthening them with direct taxes for three-fifths of their slaves; by authorizing the importation of slaves for twenty years; and by stipulating for the rendition of fugitives from labor.
We affirm that these ends for which this Government was instituted have been defeated, and the Government itself has been made destructive of them by the action of the non-slaveholding States. Those States have assume the right of deciding upon the propriety of our domestic institutions; and have denied the rights of property established in fifteen of the States and recognized by the Constitution; they have denounced as sinful the institution of slavery; they have permitted open establishment among them of societies, whose avowed object is to disturb the peace and to eloign the property of the citizens of other States. They have encouraged and assisted thousands of our slaves to leave their homes; and those who remain, have been incited by emissaries, books and pictures to servile insurrection.
For twenty-five years this agitation has been steadily increasing, until it has now secured to its aid the power of the common Government. Observing the forms of the Constitution, a sectional party has found within that Article establishing the Executive Department, the means of subverting the Constitution itself. A geographical line has been drawn across the Union, and all the States north of that line have united in the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery. He is to be entrusted with the administration of the common Government, because he has declared that that "Government cannot endure permanently half slave, half free," and that the public mind must rest in the belief that slavery is in the course of ultimate extinction.
This sectional combination for the submersion of the Constitution, has been aided in some of the States by elevating to citizenship, persons who, by the supreme law of the land, are incapable of becoming citizens; and their votes have been used to inaugurate a new policy, hostile to the South, and destructive of its beliefs and safety."

Cite.

The other states used language to the same effect. So did the secession commissioners who went through the South sowing treason. The South seceeded because it thought slavery was threatened and its leaders wanted to preserve that system. There was no other reason.
"

# posted by

Mark Field : 1:04 PM

Sad to say, if your children learn history even this accurately, they will be in about the 95th percentile of adults with respect to historical knowledge. Probably about the 90th percentile of lawyers.

Also, I want to say that for the second time in about a month, I agree totally with Mark Field, so one of us must be getting sick.

# posted by

sean : 6:51 PM

Mark, with all due respect (and I say that with real respect, not that faux 'get-fucked' way we all speak to opposing counsel and judges), but, you're -I believe wrong on this one: Lincoln was not a good guy, and yes, it was the economy, not any sort of higher moral idealism:

"What then will become of my tariff?" - Abraham Lincoln to Virginia compromise delegation, March 1861.

# posted by

Der Schatten : 10:24 PM

Yeah, but the economic issue was slavery.

I might edit Mark Field's comment a bit ... see here for a flavor of the messages of those states that came in after the battle of Fort Sumter.

Slavery alone wasn't a concern. Lincoln's election alone did not lead to their leaving the union, as compared to the actions of the first seven states. It also wasn't the motivation of many who fought for the Confederacy.

But, it was at the core of its creation. Slavery was the driving force of the election of 1860, including the South cutting the legs under from their one hope for a more friendly president, Stephen Douglas.

# posted by

Joe : 2:12 AM

"What then will become of my tariff?" - Abraham Lincoln to Virginia compromise delegation, March 1861.

I wouldn't take the Mises Institute as a source either. The Morrill Tariff was passed in 1862, so it's anachronistic for Lincoln to have said something about it in March 1861. Especially since Congress wasn't then in session and didn't even meet until July 1861.

I want to say that for the second time in about a month, I agree totally with Mark Field, so one of us must be getting sick.

LOL.

Joe's link is very handy. Those who follow it should be sure to go to the Declarations which provided the reasons for the secessions. Also, the speeches of the commissioners which I mentioned above can be found here.

# posted by

Mark Field : 10:07 AM

Quick correction to my previous post. The Morrill tariff was, in fact, passed in 1861 and signed by Buchanan (not Lincoln). It was the Morrill Act (the Homestead Bill) which passed in 1862. My bad.

# posted by

Mark Field : 12:15 PM

Dammit. I'm not talking about the '61 tariff bill. I'm talking about Lincoln's very personal (very well known) stance that A) slavery was is and will aways be a moral evil. The simple fact is the Emancipation Proclamation did nothing to stymy an autonomous region over which he had no control. Which, leads to B) the fact that the war was economically based. Fine, you say, slave-based. Again, fine. But it was an ECONOMIC clash of two differing economies: The market economy of the North (and, yes, industrialization is but one of the reasons the North won), and the agrarian economy of the South (Douglas C. North, The Economic Growth of the United States 1790-1860 at 130).

Nevertheless, not a SINGLE one of your "oh, slavery bad" (to which any civilized person, and especially this quasi-pinko Southerner would agree) and your "dirty, awful southerners" posts does a damn thing to diminish some very important truths:

1. It was the rough and tumble -paid $300 per head- that bled in the fucking dirt at Shiloh and Antietam and Gettysburg, NOT the 10% of Southerners who were slave owners. And, guess what, the descendants of that 10% became your freakin' congressional majority in 1994. Please, learn the difference between the "good ole' boys" and the "good ole' boy network" Very very different.
2. It was absolutely the North that made the first grumblings of secession, ON ECONOMIC GROUNDS (I'm assuming you will trust the Baltimore Conference and Howard Zinn as adequate sources).
3. Lincoln, for the umpteenth friggin time was NOT the man the victors made him out to be (even conveniently ignoring that wholes suspension of the Great Writ thing), I dare you to square the following quotes and come to a contrary assertion that he was not a political opportunist. "I will say then that I am not, nor ever have been in favor of bringing about in anyway the social and political equality of the white and black races - that I am not nor ever have been in favor of making voters or jurors of negroes, nor of qualifying them to hold office, nor to intermarry with white people; and I will say in addition to this that there is a physical difference between the white and black races which I believe will forever forbid the two races living together on terms of social and political equality. And inasmuch as they cannot so live, while they do remain together there must be the position of superior and inferior, and I as much as any other man am in favor of having the superior position assigned to the white race. I say upon this occasion I do not perceive that because the white man is to have the superior position the negro should be denied everything."
-- September 18, 1858 - Fourth Debate with Stephen A. Douglas at Charleston,
Illinois

C.F.

"Public sentiment is everything. With public sentiment, nothing can fail; without it nothing can succeed."
-- August 21, 1858 - Lincoln-Douglas debate at Ottawa

So, put 'em together Mark. He hated slavery. But, his constituency also favored abandoning the practice. ta dah. Consensus.

4. I do not know who the bloody hell Lew Rockwell is. But, having TAUGHT at Auburn University and having LIVED in Auburn, Alabama (and, BTW, Tuskegee as well), I sure as hell know who the Ludwig Von Mises knuckle-draggers are. And, I assure you, I quote, cite, read NOTHING from them (in fact, tongue in cheek, I resent the fact you reminded me of their existence!).

# posted by

Der Schatten : 3:46 PM

Schatten,

Your statement above that [Slavery] “was a practice on the wane (even in the second largest slave port: New York City), simply because the labor system proved a much more productive way of earning profits without that whole purchase and care-taking expense aspect. ” was not true everywhere. Randolph B. Campbell in his book “An Empire for Slavery” about slavery in Texas from 1821 – 1865 pointed out that the one major export of Texas, cotton, could not be grown in plantations by free labor.

The problem was that land itself was essentially free, and as long as that was the case, hired labor would work only until they could move on and obtain land of their own. Slavery was essential for Texans to get wealthy, and they moved to Texas for that purpose. The right to own slaves was a principle reason for the Revolution of Texans against Mexico, since Mexico outlawed slavery after breaking away from Spain.

As for slavery being uneconomic, in Texas Campbell points out that the mean value of a slave in 1843-47 was $345, in 1848-52 was $440, in 1853-57 was $625, and in 1858-62 was $765. This was an increase of 122% in 15 years. Clearly during that period slavery was economic and increasingly so. There is no way of determining whether those prices would have continued, of course, but as long as land was essentially free and the only major capital investment to get rich was the price of slaves, it probably would have continued to be profitable.

Campbell does make the point that slavery may have retarded the growth of industry in Texas, but that is also unprovable. Slavery was the major source of the fortunes of those who got rich in Texas between 1821 and 1865, and was the basis of the Texas economy during that period. In the absence of slave-based plantations the Texas economy would have at best grown much more slowly.

I would argue that slavery remained economically viable in any primarily agricultural society. The fact that the South did not begin to industrialize until after WW II would suggest that while slavery was withering away in the North, we would still have it today in the South without the Civil War.

That said,upon reading this thread I realized that I know very little about the Dred Scott decision, so I quickly retired to wikipedia.
Since I do not entirely trust wikipedia, I'd be interested in the opnion of anyone who knows this subject well enough to critique the article, particularly the portion titled Consequences and Reaction. Having gotten my history from Texas schools I had never heard of much of what was written there. Not surprising, since a friend of mine yesterday who grew up and attended Southern schools until she was 16 and the family moved to Colorado states that it was only in Colorado that she learned that the South had actually LOST the Civil War.

# posted by

Richard : 10:03 PM

To add to Richard's comments on the economics of slavery, I refer those interested to "John Brown, Abolitionist" by David S. Reynolds (2005, Albert A. Knopf), in particular Chapter 17 "The Prophet." The author points out that in the South efforts were made to legalize the slave trade, which was going on illegally via Cuba although there were no convictions for violations.

Also, the author points to the heightened secessionist movements in the South triggered by John Brown's Harpers Ferry raid. As long as the South's economy was primarily agrarian, slavery most likely would not have waned until the industrial movement spread.

At page 441: "Not only was the slave trade coming back, but slavery had become more profitable. Cotton production and cotton exports in the South nearly doubled during the 1850s. The value of field hands, which had averaged between $800 and $1,200 in 1850, reached $2,200 to $2,500 by 1860, a 100 percent leap."

# posted by

Shag from Brookline : 6:10 AM

Schatten:

First off, my apologies if I attributed to you sources you never used. I was posting away from home, which explains my mistake on the tariff reference and my need to rely on quick Google searches for possible sources of the Lincoln "quote". The only sites which came up were, well, less than reputable: Stormfront (!), Rockwell, Mises, and some Lost Cause sites.

Now to the rest of your post. It's hard to separate the moral problem for slavery from the economics. It's certainly true that Northern anti-slavery politicians, including Lincoln, praised free labor ("Free Soil, Free Labor, Free Men" was the slogan of the Free Soil party). So in that sense there was an economic component to the Civil War.

However, what people (and by "people" I mean "Lost Cause" types) often mean when they say the war resulted from "economic causes" is that the North was bound and determined to exploit the South. This argument makes no real sense as a cause of the War. For one thing, the Northern industrialists were generally allies of the South ("Cotton Whigs" they called them). For another, the best way for the North to exploit the South was to continue on course, not to force a war. For a third, this argument simply ignores the South. It was, after all, the South which seceeded. The reasons the Southern states gave all had to do with protecting slavery, as Joe's link and mine demonstrate.

As for Lincoln, yes he did make statements which make us uncomfortable today. But anybody who reads the whole body of his speeches and letters, as well as tributes from those who knew him (black and white alike), can't help but be struck by the fundamental decency of the man. Certainly the blacks who met him believed he treated them as men, and the former slaves near-worshipped him.

Richard:

The Reaction section looks pretty accurate to me. The Consequences section seems a bit badly edited, but the first and third paragraphs are accurate.

There are a number of good books on the Dred Scott case. The starting point is Don Fehrenbacher's "The Dred Scott Case". That'll tell you perhaps even more than you want to know. Simply reading Lincoln's collected speeches (Library of America Edition) is also a good source. William Freehling's two volumes called "The Road to Disunion" cover the entire lead up to the War very well.

If you want some recent challenges to the "standard view", try Prof. Graber's book shown on the home page of Balkinization and Prof. Allen's "Origins of the Dred Scott Case".* In order to see what they're arguing against, see Fehrenbacher's "The Slaveholding Republic".

*Read Prof. Allen only if you're a lawyer -- the legal discussion is too arcane for non-lawyers, I suspect.

# posted by

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# posted by

Osman Atarci : 11:56 AM