A little more than two centuries ago, Thomas Hobbes of Malmesbury
published his great treatise on government, under the title of
"Leviathan; or, the Matter, Form, and Power of the Commonwealth,
Ecclesiastical and Civil,"--in which he denied that man is born a social
being, that government has any natural foundation, and, in a word, all
of what men now agree to be the first principles, and receive as axioms,
of social and civil science; and declared that man is a beast of prey, a
wolf, whose natural state is war, and that government is only a
contrivance of men for their own gain, a strong chain thrown over the
citizen,--organized, despotic, unprincipled power. To this faithless and
impious work, which at least did good by shocking the world and rallying
many of the best minds to develop and defend the true principles of
society and the state, he put a fit frontispiece, a picture of the vast
form of Leviathan, the Sovereign State, the Mortal God,--a gigantic
figure, like that of Giant Despair or the horrid shapes we have
sometimes seen pictured as brooding over the Valley of the Shadow of
Death,--a Titanic form, whose crowned head and mailed body fill the
background and rise above the distant hills and mountain-peaks in the
broad landscape which is spread out below, with fields, rivers, harbors,
cities, castles, churches, towns and villages, and ships upon the seas
and in the ports. Its body and limbs are made up of countless human
figures, of every class, all bending reverently toward the sovereign
head. Its arms stretch forward to the foreground. In one hand it holds a
magnificent crosier, in the other a mighty sword, which reach across and
cover the whole. It is surrounded with emblems of power, of which it is
the life and embodiment. In the front is a fortified city, with its
streets and gate, its cathedral rising high above all other structures,
surmounted by the cross, the flag flying from the forts, the sentinel on
the ramparts. Its fortresses seem to defy and command the whole empire
over which Leviathan predominates. To show more fully how all-pervading
and resistless is the power of this monster made of mortal men, and the
means and extent of its control in Church and State, to impress the
senses, the emblems of its spheres and its instruments are depicted
below. First is a castle on a rocky height, with the smoke rolling from
its battlements, from which a cannon has just been fired; opposite, a
church, with a figure holding the cross above its roof of faith; here a
coronet, opposite a mitre; here is a cannon, to thunder in civil war;
opposite are the mythic thunderbolts for the fulminations of the Church;
below are arms, drums, banners and flags, helmet and halberd, spear and
sword and matchlock; opposite appears a front, between the devilish
horns of which, marked "dilemma," is formed a sort of trophy, made up of
a trident spear, labelled "syllogism," and bifurcated weapons, named
"real and intentional," "spiritual and temporal," and one beyond whose
long straight point, labelled "direct," there is another sharp, keen
one, curving round and covering it, labelled "indirect"; last is the
battle-field, with armies rushing together in deadly charge, their flags
flying above the long lines whose sloping spears bristle above the
clouds of smoke and dust, the cavalry and foot engaged with sabres and
pistols, men and horses fallen, the victors, the wounded, the dying, and
the dead,--the dread arbitrament of war; opposite, the judges ranged in
formal order, with their caps and black robes,--a Rhadamanthine
tribunal. Seeing such a summary and embodiment of his idea, a man will
shudder the more he ponders on such a conception of the state as such a
monstrous idol, which men have fashioned out of their own bodies and
invested with the attributes of superhuman power, and worshipped as the
creator of Justice and Law, Peace and Order, Truth and Religion, and
served and obeyed as their Tyrant and King.
The American state,--which, as Franklin said, "first set forth religious
truth as the basis of government," formed by the people, who, calling on
all mankind to witness their solemn appeal to the Supreme Judge of the
world, "pledged themselves," as Adams said, "to extinguish Slavery as
soon as practicable,"--the state formed to establish justice,--the state
for which the founders reverently adopted as the true emblem the Goddess
of Liberty,--had, at the time when Slavery, the patricide, waged this
war to finish the revolution already almost complete, so essentially
changed, that it bore a striking resemblance to that dreadful picture of
the giant form of the Leviathan. _Populus Romanus repente factus est
alius._
It will be difficult to decide which branch of our government was most
efficient in producing this change; as it will be difficult for one who
considers the principle, or want of principle, on which this Juggernaut
was constructed, to decide which would be the more horrible, a decision
by battle or by the robed ministers of evil. But as the Leviathan,
Slavery,--the Mortal God, the incarnation of Evil,--is growing more and
more shadowy, and men again behold the heavenly Guardian of their State,
Americans feel, and the world agrees, that war, though it reaches other
classes and in different form, is really attended with less horror and
woe at the time than several judicial decisions have occasioned; and
that the lasting results of battles are incalculably more insignificant
than the judgments of courts may be.
* * * * *
Roger Brooke Taney was, when nearly sixty years old, placed at the head
of the Judiciary, at a critical time in American affairs. The Slave
Power, so successful in extending its dominion, and already the
controlling influence in the government, was pressing its unholy and
arrogant demands openly and without shame. It had destroyed civil
liberty in the Slave States, and was fast destroying it in the Free. It
was stifling the right of petition in Congress, and smothering free
speech in the States. The Executive was recommending that the mails
should be sifted for its safety. The question of the right of Slavery in
the Territories and the Free States was taking form, and the
slave-catchers claimed to hunt their prey through the Northern States,
without regard to the rights of freemen or the law of the land. Taney
had long been known as an astute and skilful lawyer, a man of ability
and learning in his profession--as ability and learning are commonly
gauged. He had been Attorney-General of Maryland, and in 1831 had been
appointed Attorney-General of the United States. He was an ardent
partisan supporter of the administration; and in 1833, when Duane
refused to remove the deposits, he was appointed to the Treasury as a
willing servant, and did not hesitate to do what was expected of him.
In 1835, while the country was deeply agitated by questions concerning
the rights of States and the powers of the government, he was nominated
to a vacancy on the Supreme Bench. His opinions on those questions were
well known, and the consideration of his nomination indefinitely
postponed.
But some time after the death of Chief Justice Marshall, which occurred
on the 6th of July, 1835, Taney was nominated as his successor, and in
1836, the political complexion of the Senate having in the mean time
changed, was confirmed by party influence, and took his seat at the head
of the Judiciary in January, 1837.
He was essentially a partisan judge, as much so as were the judges of
King Charles, who decided for the ship-money in accordance with their
previously announced opinions. The President wrote him a letter in which
he thanked him for abandoning the duties of his profession and promptly
aiding him by removing the deposits; and Webster declared he was the
pliant tool of the Executive. The Massachusetts, Kentucky, and New York
cases in the very first volume of the Reports showed that, if not swift
to do the work for which he had been selected, he did not hesitate to
embody his political principles in judicial decisions. But we do not
intend to examine these, or to review the long series of decisions,
extending over more than a quarter of a century, and through more than
thirty volumes, on the common or even the grander questions discussed in
that tribunal, which will all, or nearly all, be unknown,--save to the
profession,--and will have but little influence on the welfare of the
country and the course of history. We would consider only the more
important of those decisions touching Slavery, the cause of this
Revolution, which have already shaped the course of events, and become
the record of his character as a jurist, a patriot, and a man.
His private opinions about Slavery are not matter of comment or inquiry.
There are two official opinions given by him while Attorney-General in
1831 which relate to the matter. In one of these he had to consider
whether the United States would protect the right of a slave-master over
his slave, employed as a seaman on a ship trading to one of the States,
in which he expressed the opinion that the United States could not, by
treaty, control the several States in the exercise of their power of
declaring a slave free on being brought within their limits. In the
other, he held that a person removing his slaves with him to Texas,
merely for a temporary sojourn, and with the intention of returning
again in a short time to the United States, might safely bring his
slaves back with him. But he then declared, that if the owner had placed
his slaves in Texas as their domicile, he would be liable to
prosecution, under the act of Congress, if he should bring them back
into the United States.
In 1837, the very year Taney took his seat on the Supreme Bench, he gave
the opinion of the Court in the cases of the Garonne and the Fortune,
two vessels libelled, under the act of 1818, for bringing as slaves into
New Orleans persons who had, in 1831 and 1835, been carried to France
and some of them manumitted there. The judge then said that, "assuming
that by French law they were entitled to freedom, there is nothing in
this act to prevent their mistress bringing them back and holding them
_as before_."
He seems to have considered it immaterial, or to have been ignorant,
that, in accordance with the maxim, "Once free, forever free," declared
in the courts of his own State of Maryland, the courts of Louisiana
held, as did those of Kentucky and other States also, that, "having been
for one moment in France, it was not in the power of her former owner to
reduce her again to slavery," and to have forgotten the doctrines of one
of his own opinions.
Slavery, when he came upon the bench, began to look to the Supreme Court
as its surest defence.
The Prigg case, as it is called, or, as lawyers call it, Prigg _vs._ The
Commonwealth of Pennsylvania, was an amicable suit; the parties in
interest being the States of Maryland and Pennsylvania, which were
represented by the ablest counsel, who came into court, as Johnson,
Attorney-General of Pennsylvania, said, "to terminate disputes and
contentions which were arising, and had for years arisen, along the
border line between them, on the subject of the escape and delivering up
of fugitive slaves." The counsel regarded themselves, as he said, as
engaged in "the work of peace," and "of patriotism also."
Edward Prigg and others were indicted in Pennsylvania for kidnapping a
negro woman on the 1st of April, 1837. The cause came to trial before
the York Quarter Sessions, May 22, 1839; and the counsel agreed that a
special verdict should be taken and judgment rendered, and thereupon the
case carried up, so as to present the questions of law arising, under
the Pennsylvania Emancipation Act of 1780, upon the United States act of
1793 touching fugitives from labor, and the statute of Pennsylvania
passed in 1826, which provided for the seizure and surrender of fugitive
slaves and for the punishment of kidnapping. The case was made up and
presented in that spirit of compromise which has been the bane and
delusion of America, (as if there could be any compromise of
justice,)--the counsel for Pennsylvania claiming that their statute was
auxiliary to that of the United States, really beneficial to Slavery,
and that they advocated the true interests of the South as well as of
the Union and the North,--in order to have the Judiciary authoritatively
settle the vital question of the rights of the master in the seizure,
and of the States in the rendition, of fugitive slaves. The Court
decided, fully, that the master had a right to seize his fugitive slave
wherever he could find him, and take him back without process; that the
law of 1793 was constitutional; and that the United States had the
exclusive power of legislation on that matter.
But this did not satisfy Chief Justice Taney. He agreed that the master
had the right of seizure. He declared that this right was the law of
each State, and that no State had power to abrogate or alter it, and
foreshadowed the idea that the Constitution carried Slavery over all
the Territories and States. But he dissented from the Court when they
held the Pennsylvania act to be invalid. And without relying on any
principle, without any discussion of, or the slightest allusion to, any
authorities or the great fundamental questions involved in that issue,
he coolly depicted the inconveniences the slave-catcher might be subject
to in States where there was but one District Judge, and how essentially
he would be aided by the State legislation; and pointed out to his
brethren those "_consequences_" which they did "_not contemplate_" and
to which they "did not suppose the opinion they had given would lead."
And he said that, where the States had such statutes, "it had not
heretofore been supposed necessary, in order to justify those laws, to
refer them to the questionable powers of internal and local police. They
were believed to stand upon surer and safer grounds, to secure the
delivery of the fugitive slave to his lawful owner."
Counsel said, "The long, impatient struggle on that question was nearly
over. The decision of this Court would put it at rest." It was not so.
This decision was made in 1843. But from that time the strife over that
question was more violent than ever. The Slave Power took this decision
as a new concession and guaranty. It certainly affirmed the right of the
master to exercise his absolute power, in the most offensive form, to be
beyond control of all legislation whatever, State or National. The Court
doubtless meant, as the States and the counsel did, by giving to
Congress the exclusive power of legislation on the surrender of
fugitives from labor, to settle this question in such form as to satisfy
the Slave Power.
If the opinion of Mr. Webster be worth anything, they forgot the maxim,
"Judicis est jus dicere, non dare." Most surely Taney ignored his
State-Rights doctrines when, looking far on for the interests of Slavery
and the convenience of slave hunters, he held the United States
authorized to legislate on the matter; and, disguising the poison under
the phrase, "the Constitution and every clause of it is part of the law
of every State of the land," he put forth the dogma that the rendition
clause merely provided for the rights of citizens, "put them under
protection of the General Government," and made "the rights of the
master the law of each State." He was declaring a rule of government,
not a rule of law, and creating a theory for the defence of property in
man.
In 1850 he went a step farther. A Kentucky slave-owner had been in the
habit of letting some of his slaves go into Ohio to sing as minstrels.
He filed a bill against a steamboat and her captain to recover the value
of those slaves, who, after their return, had been carried across the
river and escaped. It must be remembered that they had not first
escaped, but had been _carried_ to Ohio. But here, again, without
recurring to any of the principles presented and fairly involved in such
an issue, again looking far on to consequences in the interest of
Slavery, again ignoring, not only the first principles of jurisprudence
and the declared ends of the Constitution, but even his own political
State-Rights doctrine, (for if these men had not escaped, why could not
Ohio free them?) he declared a doctrine pregnant with mischief,--that
each State had the absolute right to decide the status of all persons
within its limits. This, too, has gone with war. But his intent is none
the less clear. The theory was obviously stated with a far-reaching view
to remote consequences. And it must be considered in connection with the
fact that, in lieu of the old rule which had been recognized by the
Slave States, that a slave, by being carried to a Free State or
domiciled for a day in a foreign country by whose law he was
enfranchised, was liberated forever,--once free, free forever and
everywhere,--the Slave Power was beginning to assert a new rule for
reënslavement by recapture and on return.
But the Slave Power, having controlled the executive and directed the
legislative branch of the government, again turned to judicial power as
the surest, and best able to work out easily the largest and most
lasting results. The Dred Scott case was begun in 1854, and brought up,
twice argued, and finally decided in 1856; Chief Justice Taney
delivering the opinion of the Court. The facts and result of that case
are well known. In a cause dismissed for want of jurisdiction, this
Court pretended to decide that no person of African slave descent could
ever be a citizen of the United States, and that the adoption of the
Missouri Compromise line by the Congress of 1820, acquiesced in for
thirty-five years, was unconstitutional. This doctrine was entirely
extrajudicial, and, as one of the judges declared, "_an assumption_ of
authority."
We do not propose to discuss this decision. It was the lowest depth. It
probably did more than all legislative and executive usurpations to
revive the spirit of liberty,--to recall the country to the principles
of the founders of the Constitution. It began the good work,--_evoking_
the truth, by showing its own fiendish principles,--which the war is
likely to finish forever. We wish, however, to give an analysis of the
doctrines and reasons on which his decision was based, and therefrom to
show what is the true place of Roger Brooke Taney as a jurist and a
patriot.
Now the course of his argument was this,--admitting that all persons who
were citizens of the several States at the time of the adoption of the
Constitution became citizens of the United States, to show that persons
of African descent, whose ancestors had been slaves, were not in any
State citizens.
And first, he tries to show this "by the legislation and histories of
the times, and the language used in the Declaration of Independence";
and after referring to the laws of two or three Colonies restricting
intermarriage of races, and affirming that, though freed, colored
persons were in all the Colonies held to be no part of the people, and
declaring that "in no nation was this opinion more uniformly acted upon
than by the English government and people," admitting that "the general
words '_all men_ are created equal,' etc., would seem to embrace the
whole human family," and that the framers of the Declaration were "high
in their sense of honor, and incapable of asserting principles
inconsistent with those on which they were acting," he argues that,
because they had not fully carried out, and did not afterwards fully
carry out, their avowed principles by instant and universal
emancipation, therefore he can give to as plain and absolute words as
were ever written, expressive of universal laws, a force just opposite
to their terms;--a new form of argument, which begins by assuming the
truth of the proposition desired, and ends by denying the truth of the
admitted premises.
He then proceeds, to inquire if the terms "we, the people," in the
Constitution, embraced the persons in question. Here, too, he admits
that they did embrace all who were members of the several States. Then,
turning round the power given Congress to end the slave-trade after
1808, and arguing from it as a reserved right to acquire property till
that time; laying aside the fact that the framers of the Declaration had
acted on their declared principles, and that in many States, as in
Massachusetts and Vermont, even in Southern States, as in North Carolina
they remained till 1837, many freed colored persons were citizens at
that time, with the remark, that "the numbers that had been emancipated
at that time were but few in comparison with those held in slavery,"
assuming that the very acts of the States suppressing the slave-trade
helped instead of destroying his argument; arguing from the fact that
Congress had not authorized the naturalization of colored persons, or
enrolled them in the militia; arguing even from State laws passed in the
most passionate moments as late as 1833; going back to the old Colonial
acts of Maryland in 1717, and of Massachusetts in 1705; even coming down
to the fact that Caleb Cushing gave his opinion that they could not have
passports as citizens; denying that the "free inhabitants" in the
Articles of Confederation, which he was forced to concede did in terms
embrace freemen, actually did include them, because the quota of land
forces was proportioned to the white inhabitants,--he affirmed that they
were not and never could become citizens, that neither the States nor
the nation had power to lift them from their abject condition. The
United States could naturalize Indians. But neither the United States
nor the individual States could make colored persons citizens.
The Chief Justice stated that colored persons were not, at the time of
the adoption of the Constitution, citizens under the laws of the several
States and the laws of the civilized world. But he knew, for it had been
shown to him in the arguments, that such persons, and many who had been
slaves, were then citizens in Massachusetts, New Hampshire, and North
Carolina, as they likewise were in Vermont, Pennsylvania, and in other
States. And he knew--for in 1831 he himself said it was "a fixed
principle of the law of England, that a slave becomes free as soon as he
touches her shores"--that he declared as law what was not the law of
civilized nations; that in 1762 Lord Northington declared that "as soon
as a man sets foot on English ground he is free"; and that Lord
Mansfield had, in 1772, held that "Slavery is so odious that it cannot
be established without positive law." He knew (or he declared what he
did not know) that at that day the sentiment in France was so directly
to the contrary, that in 1791 the law was "_Tout individu est libre
aussitôt qu'il est en France_." At the time to which he referred, public
opinion in the American States and in foreign countries, and the
legislation of the various States, were just the opposite of what he
stated them to be. Liberty was just at the moment more truly the
sentiment of the country and of states in amity with it than at any
other. The assertion, that colored persons could not be and were not
citizens of the several States, was simply false. In most if not in all
of the States such persons were citizens. In 1776, the Quakers refused
fellowship with such as held slaves; that sect, through all the States,
enfranchised their slaves, who, on such enfranchisement, became
citizens. American courts were not behind the English courts. States
adopted the language of the Declaration into their Constitutions for the
purpose of universal emancipation, and the courts decided that that was
its effect. At the time of the adoption of the Constitution the leading
men of all sections considered emancipation essential to the realization
of the American idea; for their government was founded on a theory, and
avowed principles, which rendered it necessary, and which, with the
performance of the pledges of the States and the exercise of the powers
directly given to the Union, would make liberty universal and perpetual.
Taney even argued that persons of African descent could not be citizens,
because they could "enter every State when they pleased, without pass or
passport, and without obstruction, to sojourn there as long as they
pleased, to go where they please, at every hour of the day or night,
without molestation, unless they committed some violation of law for
which a white man would be punished; and it would give them full liberty
of speech, in public and in private, upon all subjects upon which its
own citizens might speak, to hold public meetings," and "to bear arms"!
As if this would not be to a true jurist and just judge expounding a
Constitution made "to establish justice" itself the ground to for
deciding that citizenship was opened to them by emancipation; as if the
blessings of liberty ought not to prevail over any inconveniences to
slave-holders.
His argument from subsequent legislation was perfectly idle. For, at
most, the statutes of Naturalization and Enrolment merely showed that
Congress did not then choose to apply to colored persons the power given
to them in absolute terms, and which he admits they had as to Indians.
While in other statutes, as that of 1808, of Seamen, and in several
treaties, as, for instance, those whereby Louisiana, Florida, and New
Mexico were acquired, colored persons are expressly named as citizens.
Having denied the clear facts of history, renounced the obligation of
explicit language, professed to stand on an argument every member of
which was destructive of his conclusion, he thus stated the result:
"They were at that time," 1789, "considered as a subordinate and
inferior class of beings, who had been subjugated by the dominant race,
and, whether emancipated or not, yet remained subject to their
authority, and had no rights or privileges but such as those who held
the power and the government might choose to grant them"; that the
opinion had obtained "for more than a century" that they were "beings of
an inferior order," with "no rights which the white man was bound to
respect," who "might justly and lawfully be reduced to slavery," "an
ordinary article of merchandise and traffic wherever a profit could be
made of it"; and this opinion was then "fixed and universal in the
civilized portion of the white race,"--"an _axiom_ in morals as well as
politics." He then declares, that to call them "citizens" would be "an
abuse of terms" "not calculated to exalt the character of the American
citizen in the eyes of other nations."
No wonder the nations pointed the finger of scorn, and cried out, "Is
this the perfection of beauty, the joy of the whole earth? Shade of
Jefferson! is this the reading America was to give the Declaration? Did
you publish a lie to the world? Spirits of Franklin, Adams, and
Washington! is this your work? Americans! is this your character?"
He declares, further, that the Court has no right to change the
construction of the Constitution; that "it speaks in the same words,
with the same meaning and intent, with which it spoke when it came from
the hands of its framers, and was voted on and adopted by the people of
the United States. Any other rule of construction would abrogate the
judicial character of this Court, and make it the mere reflex of the
popular opinion or passion of the day. This Court was not created by the
Constitution for such purposes. Higher and graver trusts have been
confided to it; and it must not falter in the path of duty!" Would to
God it had not faltered in the path of duty, that it had been true to
those higher and graver trusts! Would that it had not been the mere
reflex of popular opinion or the passion of the day, that it had not
abrogated its judicial character! Would that it had read the plain words
in the holy spirit in which they were written! Would that it had left
the Constitution as it was, and, instead of thus writing its own
condemnation, had shown how efficient an instrument that Constitution
would be, if fearlessly used to carry out the great principles of
humanity for which its preamble declares it was established!
Here is the key to the new distinction between the Constitution as it is
and the Constitution as it was. But as it was in the beginning, so it is
and shall be.
But Taney could not stop here. Compromises had been made through the
other branches of the government,--compromises held sacred for more than
a generation, in the vain hope to appease the insatiate lust of the
Slave Power. He went on with a longer and lower argument to declare one
branch of the Compromise--the act of Congress prohibiting slavery in
territory north of 36° 30'--void.
Even more,--for he seemed determined to make clean work of it,--he went
on to say that a slave who had been made free by being taken (not
escaping, but by being carried by his owner) to a Free State was reduced
to slavery again on arriving back in the State from which he had been
taken, and that that was the result of Strader _vs._ Graham, which
declared that the _status_ of persons, whether free or slave, depended
on the State law. Here, again, he sacrificed his cherished party
principles to his love for Slavery. Else how could the State to which
the slave had been carried be deprived of its right to enfranchise, or
how could the United States power be extended further than to the
expressly granted case of escape?
But no. He was a judicial Calhoun. His dogma was that the fundamental
law guaranteed property in man. He declared that therefore Congress
could not interfere with it in the Territories. Before he was judge, he
admitted the right of sojourn. There was but one step more,--the sacred
right of slave property in Free States. It was involved in what he had
already said, and was not so great an anomaly as he had already
sanctioned; for if the Constitution guarantees this property in every
State,--if the States do not reserve the power to interfere with
it,--if, in case of escape, Congress has the power to reclaim it,--why
is not the owner to be guaranteed it in the States as well as in the
Territories?
In looking across this long judicial Sahara of twenty-seven years, there
is but one oasis. In the Amistad case, the Court did declare that Cinque
and the rest, who had been kidnapped, had the right to regain their
natural liberty, even at the cost of the lives of those who held them in
bondage; and for once the Court, speaking by Story, did appeal to the
laws of nature and of nations, and decide the case "_upon the eternal
principles of justice_." But all else is, in the light of this question
of Slavery, by which this age will be remembered and judged, a dreary,
barren waste of shifting, blinding, stifling sand.
History will tell whether America is to be judged by the words spoken by
him who so long held the highest seat in her courts. We do not think she
has fallen to such a depth. He did not speak for her; but he did for
himself.
By this record will the world judge Chief Justice Taney. His great
familiarity with the special practice; his knowledge of the peculiar
jurisdiction of his tribunals; his acquaintance with the doctrines and
decisions of the common law, with equity and admiralty; his opinions on
corporate and municipal powers and rights, on land claims, State
boundaries, the Gaines case, the Girard will, on corporations; his
decisions on patent-rights and on copyrights; his opinions extending
admiralty jurisdiction to inner waters, on liability of public officers,
and rights of State or national taxation, on the liquor and passenger
laws, on State insolvent laws, on commercial questions, on belligerent
rights, and on the organization of States,--after doing service for the
day in the mechanical branch of his craft, will soon be all forgotten.
But the slavocrats' revolution of the last two generations, and the
Secession war, and the triumph of Liberty, will be the theme of the
world; and he, of all who precipitated them, will be most likely, after
the traitor leaders, to be held in infamous remembrance; for he did more
than any other individual,--more than any President, if not more than
all,--more in one hour than the Legislature in thirty years,--to extend
the Slave Power. Indeed, he had solemnly decided all and more than all
that President Buchanan, closing his long political life of servility in
imbecility, in December, 1860, asked to have adopted as an "explanatory
amendment" of the Constitution, to fully satisfy the Slave Power. Well
would it have been for that Power, for a while at least, had its members
recollected that "no tyranny is so secure, none so remediless, as that
of executive courts"; well for them,--if it is better to rule in hell
than serve in heaven,--but worse for the world, had they been patient.
But the dose of poison was too great. Nature relieved itself. War came,
not the ruin, but the only salvation, of the state.
The movements of events have been so rapid, the work of generations
being done in as many years, that Taney's character is already historic;
and we can judge of it by his relation to the great event which alone
will preserve it from oblivion.
In judging his public character as the head of the Judiciary of America,
consider the _cause_ he sought to promote, his motives, the means he
used, his resources as a jurist and a lawyer in that cause, the intended
effect and actual results.
And of the cause this must be said and agreed by all, that there was
never one of which a court could take cognizance in America, England, or
the world so utterly evil and infamous as that of Slavery in the United
States. Did he realize its extent? Yes, there were "few freedmen
compared with the slaves," say only sixty thousand out of seven hundred
thousand in 1789. He fully realized that, in repudiating the promise
made for those seven hundred thousand, a pledge made with the most
solemn appeal to man and to God, he utterly destroyed the rights and
hopes of four million men. He knew he was deciding, for a vast empire,
weal or woe; and he knew it was woe, or he had no sense of justice.
And his motives? He was not venal, not corrupt, not a respecter of
persons. But there is something bad besides venality, corruption, and
personal partiality. The worst of motives is disposition to serve the
cause of evil. The country knows, the world will declare, none served it
so well. But was he conscious of serving it? Yes,--unless the traitors
so eagerly sought to put all these interests under his jurisdiction
without motive,--unless his eager and unnecessary, and, as was declared
and is now agreed, assumed jurisdiction over it, his "far-seeing" care
and untiring defence of them, their appeal to his decisions, were all
mistakes,--unless all these, and his manner, their motives, and the
assured results, coincided so as by the law of chances was
impossible,--he was conscious. To deny it is to say that he was imbued
with the spirit of evil.
The world knows by what means he assumed to settle these questions. We
have seen something of the nature of his arguments. With these, too, men
are somewhat familiar, and by these let them judge of him as a jurist.
There is not in them all one faint recognition of the axioms of
law,--one position founded on the laws of nature or the rules of eternal
justice and the right,--one notice of the great primal rules laid down
by all jurists and great judges of ancient and modern times, or of the
precepts of religion by which any magistrate in a Christian land must
expect to be governed, or to be held infamous forever. Nay, more: he
does not recognize at all those fundamental principles of the
Constitution and Declaration which are stated in plain terms in the
first lines of both. He did worse than torture and pervert language: he
reversed its meaning. He denied the undoubted facts of history. He
denied the settled truths of science. He slandered the memory of the
founders of the government and framers of the Declaration. He was ready
to cover the most glorious page of the history of his country with
infamy, and insulted the intelligence and virtue of the civilized world.
Where, outside his "_axiom in morals and politics_" can be found so
monstrous a combination of ignorance, injustice, falsehood, and impiety?
Ignorant of the meaning of an "axiom"; denying the truths of science;
falsifying history; setting above the Constitution the most odious
theory of tyranny, long before exploded; scoffing at the rules of
justice and sentiments of humanity,--he tied in a knot those cords which
must end the life of his country or be burst in revolution.
He well knew, too, what would be the effects of his decision. Avowedly
he was ready to lay the time-honored principles of civil right and the
ancient law at the feet of the Slave Power. The passions of a mighty
people never raged more fiercely than whilst that last cause was before
his court,--save in open war; and there was almost war then. He
well-knew nothing would so force them to desperation,--the desperation
of unlicensed barbarism or the immovable determination of truth and
justice driven to the wall. He knew, or if he did not, was so ignorant
that he was incompetent, that in such a contest on such fundamental
principles, such a decision must end in revolution and civil war. If he
dreamed of peace, then he was ready to seal the doom of four million,
and at the end of this century of ten million souls.
In all these decisions he appeals to no one great principle. There is
little in all his judgments to raise him above the rank of respectable
jurists; and in these, presenting the fairest occasion ever offered to a
true lawyer, to one fit to be called an American, nothing that will not
cover his name with infamy, where, on far lesser occasions, Hale and
Holt, Somers and Mansfield, covered theirs with honor, and added to the
glory of their country, and did good to mankind.
He was not, indeed, of that class of the bad to which the profane
Jeffreys and Scroggs and the obscene Kelyng belong. But he was as prone
to the wrong as was Chief Justice Fleming in sustaining impositions, and
Chancellor Ellesmere in supporting benevolences for King James; as ready
to do it as Hyde and Heath were to legalize "general warrants" "by
expositions of the law"; as Finch and Jones, Brampton and Coventry, were
to legalize "ship-money" for King Charles; as swift as Dudley was under
Andros; as Bernard and Hutchinson and Oliver were in Colonial times to
serve King George III.; as judges have been in later times to do like
evil work. Some of these, perhaps, had no conscious intent to do
specific wrong. Their failure was judicial blindness; their sin,
unconscious love of evil. But this question of Slavery towers above all
others that Taney ever had to consider; America professed a loftier
standard of justice than England ever adopted; the question of the
liberty of a race is more important, the question whether the State is
founded on might or on right is more vital, than those of warrants and
ship-money, benevolences and loans; and Roger Brooke Taney sinks below
all these tools of Tyranny.
Hobbes said, that, "when it should be thought contrary to the interest
of men that have dominion that the three angles of a triangle should
equal two right angles, that truth would be suppressed." Taney did deny
truths far plainer than that,--the axioms of right itself. He did more
than any other man to make actual that awful picture of the Great
Leviathan, the Mortal God. How just, how true, were those last symbols
of the State founded on mortal power! The end of the dread conflict of
battle is the same as the end of the equally dreadful issue of the
Court.
But those he served themselves with the sword cut the knot he so
securely tied; his own State was tearing off the poisoned robe in the
very hour in which he was called before the Judge of all. America stood
forth once more the same she was when the old man was a boy. The work
which he had watched for years and generations, the work of evil to
which all the art of man and the power of the State had been
subservient, that work which he sought to finish with the fatal decree
of his august bench, one cannon-shot shattered forever.
He is dead. Slavery is dying. The destiny of the country is in the hand
of the Eternal Lord.