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Here is the relevant passage with
citations from my never quite finished manuscript.
Prominent Republicans believed that the due process clause protected the
property of white settlers moving westward as well as the liberty of their
would-be slaves. Abraham Lincoln supported Taney's claim that persons had
a right to bring their possessions into the territories. "[T]he
slaveholder [would have] the same right to take his negroes to Kansas that a
freeman has to take his hogs or his horses," he informed his fellow citizens,
"if negroes were property in the same sense that hogs and horses are." As
late as 1901, Republican justices on the Supreme Court treated the
Taney/Lincoln/McLean position as good constitutional law. Justice Homer
Billings Brown in Downes v. Bidwell declared that "if . . . slaves were
indistinguishable from other property, the inference from the Dred Scott case is
irresistible that Congress had no power to prohibit their introduction into a
territory."
Lincoln, 2 Collected Works, p. 245. See Lincoln, 2 Collected Works,
p. 264; Congressional Globe, 31st Cong., 1 Sess., App., p. 479 (speech of Salmon
Chase).
Downes v. Bidwell, 182 U.S. 244, 274 (1901) (opinion of Brown, J.).
"It would scarcely be insisted," Brown continued,
that Congress could with one hand invite settlers to locate in the
territories of the United States, and with the other deny them the right to take
their property and belongings with them. The two are so inseparable from
each other that one could scarcely be granted and the other withheld without an
exercise of arbitrary power inconsistent with the underlying principles of a
free government. It might indeed be claimed with great plausibility that
such a law would amount to a deprivation of property within the Fourteenth
Amendment. The difficulty with the Dred Scott case was that the court
refused to make a distinction between property in general, and a wholly
exceptional class of property." Downes, at 274-75 (opinion of Brown,
J.)
See Schwartz, History, p. 123.
Back to my voice. Is my reading airtight. No. But I think
a reasonable (I would argue best) interpretation is that Lincoln believed
persons had a right to bring hogs into the territories.
Mark A. Graber
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