THE SENATE AND JUDICIARY.

16

21

had jurisdiction, was, according to Ashley, equal to at least one-third of that of all the fifteen slave states.1

Great as was the advantage which the slavocracy acquired by the law of 1837, they did not consider themselves sufficiently secured by it. Only after they had succeeded in making sure of a permanent majority in the judiciary committee of the senate, did they feel entirely certain that a majority of the justices of the supreme court of the United States would profess the doctrines relative to slavery which were agrecable to the slave interest, whenever a legal question bearing on slavery arose. The proposals of the judiciary committee of the senate controlled, as a rule, the position of the senate on the nominations of the president to the supreme court, and, beginning with Tyler's administration, the committee had, on every occasion, criticised the nominations in such a way as to make it a moral certainty that the opinions of the nominees on the slavery question would be of great weight in, if not decisive of, the question of their confirmation. At last even southerners of tried probity and great consideration found no favor in their eyes when, on the slavery question, they had professed constitutional convictions,-convictions which were condemned by the radical slavocrats, during the development of the struggle, as dangerous heresies, with an intensity to which time only added strength.

Notorious as these facts were, no documentary proof of them could be produced because nominations were considered in secret session, and further, because the sen

1 Iowa, Wisconsin, California, Minnesota and Oregon had, according to the census of 1860, together, a population of 2,040,841, while the white population of the newly admitted slave states, Florida and Texas, amounted to only 459,092.

2 See the interesting proofs Ashley gives of this in the speech here cited. Congr. Globe, I Sess. 36th Congr., App., p. 367.

ators who allowed their votes to be determined by regard for the slavery question were not so unwise as to say so openly. In any event they would attain their object most surely and completely by avoiding to give even the slightest intimation of their motive, since, by such avoidance, they would, for the most part, deprive criticism of all foundation, especially as recognized judicial ability and spotless personal honor were still considered absolutely necessary qualifications for a seat on the supreme bench.

If the possession of these qualifications was denied repeatedly and emphatically to several judges, in consequence of the Dred Scott decision, the reason was partly this, that people had become too excited not to be unjust. But the principal reason was the much more important fact that, on this question, men's thoughts and feelings had grown so divergent that at last they were utterly incapable of understanding one another. Spite of the absence of documentary evidence, it would be ridiculous to deny that orthodoxy on the slavery question had come to be a qualification for a seat on the supreme bench; but it does not, therefore, follow that the judges were unscrupulous partisans, ready, consciously, to surrender their constitutional convictions at the command of the slaveholding interest. What made the opposition between the north and the south so enormous a danger was the fact that the latter was so terribly honest in its faith in

1 Ashley, indeed, asserted: "Many things have been said and done in the secret sessions of the United States senate, which, if made public at the time, would have consigned the utterer to the shades of private life and the party to a hopeless minority." 1. c. In view of the agitation begun in 1886 in favor of the consideration of nominations by the senate in public sessions, it is worthy of mention that Ashley was induced, by the facts mentioned, strongly to advocate that course at this time.

SLAVERY AND THE SUPREME COURT.

23

all its erroneous doctrines, constitutional, economic and moral, relating to slavery. Slavery had become the formative principle of its entire life to such an extent that on that subject it had gradually and completely lost the power to think and feel aright. What appeared as the conclusion of its chain of reasoning was, in fact, always the starting-point of its argument; but because it was sunk in such deep delusion, it succeeded to perfection in clothing the demonstration of the a priori proposition in the form of an objective, legal investigation. With the further development of the struggle, the aim of its political endeavor became more and more the premises of its legal deductions; and the grosser and bolder the sophisms it piled up on this foundation, the more did they become to it subjective truths which were declared with the fullest conviction to be unimpeachable facts or uncontrovertible principles of law. But the laws of the moral order of the world do not surround the judge's bench with a wonder-working atmosphere in which the poisonous germs that fill all the air besides lose their viability. The man who lies down in a swamp must breathe the air of the swamp with all its miasmata. But not only had the entire population of the south fallen victims to the disease- not excepting even those classes whose own interests should have made them the most decided opponents of slavery - but the poison was so powerful and subtle that it carried the evil to the north as a permanent epidemic.

The only question, therefore, could be, what stage of the development of the disease the thought and feeling of the southern members of the supreme court had reached, not whether they had been attacked by it at all. The republican press was, therefore, entirely right in considering a judgment based on the doctrines of the south

a matter of course, and the only thing doubtful whether the judgment of the court and the political question would cover each other, that is, whether the supreme court would, for political reasons, extend its judgment on the legal case before it to a judgment on the political question, by depriving the latter of a lawful foundation through the decision of the constitutional issues involved in it. But on the other hand, the republicans were, for the same reason, wrong in accusing the judges, more or less directly and emphatically, of having debased themselves, against conscience and their better knowledge, to such a degree as to become the slaves of the slavocracy. The guilt of the supreme court was great, but that guilt must not be ascribed to moral turpitude; it must be traced to a want of judgment in things political. Even if the jurisdiction of the supreme court had been undoubted, and if the Dred Scott case had required the decision of the general question, its judgment would not have ended the struggle, because, together with the actual situation, it had, long before this, outgrown the control of formal law. But now its jurisdiction was roundly denied by a political party, which, in the last election, had cast nearly a million and a half of votes; and, in order to pass from the Dred Scott case to the general question of the powers of congress relative to slavery in the territories, the supreme court had to go counter to

1 Pike wrote on January 5, 1857, to the New York Tribune: "The rumor that the supreme court has decided against the constitutionality of the power of congress to restrict slavery in the territories has been commented upon in the most unreserved manner at this metropolis. . . . Many have expressed the opinion that the question would not be met by the court, and numbers are still of that way of thinking. . . If the court is to take a political bfas, and to give a political decision, then let us by all means have it distinctly and now." First Blows of the Civil War, pp. 355, 356.

.

THE DRED SCOTT CASE.

25

fundamental principles of law which it had itself fre quently recognized. But no matter how the question of jurisdiction must be decided, the supreme court now wrongly forced itself between the political parties as arbiter, and this, with a judgment holding that which from the first year of the Union's life under the constitution had been the law of the land to be null and void, because it was an unconstitutional usurpation. The Dred Scott decision would, therefore, remain the greatest political atrocity of which a court had ever been guilty, even if the reasoning of Chief Justice Taney, who delivered the opinion. of the majority, were as unassailable and convincing, historically and constitutionally, as it was, in fact, wrong, sophistical and illogical.

Dred Scott was a slave born in Missouri, whom his owner, Dr. Emerson, had taken with him, in 1834, to Rock Island, in Illinois, and from there, in 1836, to Fort Snelling, situated, north of the Missouri line, in the territory of Louisiana. In the year 1838, Emerson returned with Dred Scott, who had not claimed his freedom on the ground of his sojourn in the free state and the free territory, to Missouri, and sold him to one Sandford, of New York. Subsequently, Scott claimed his freedom as against the latter, and the circuit court of St. Louis county decided in his favor. souri, however, to which an this decision and remanded the case back to the circuit court. Before it reached a second decision here, Dred Scott, in November, 1853, entered suit for damages in the circuit court of the United States against Sandford on the ground that the latter had laid violent hands upon him, and, contrary to law, held him in slavery.' Sandford

The supreme court of Misappeal was taken, reversed

1 The force and violence as well as the complaint extended to Dred Scott's wife and two children. On this phase of the question I shall