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.