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.