The Atlantic Monthly, Volume 15, No. 88, February, 1865 / A Magazine of Literature, Art, and Politics

by Various

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.