THE DRED SCOTT CASE. 31 portance, about which there had become such a difference of opinion that the peace and harmony of the country required the settlement of them by judicial decision." 1 Chase had already written in 1847: "If courts will not overthrow it (the pro-slavery construction of the constitution), the people will, even if it be necessary to overthrow the courts also."2 And now the supreme court of the United States undertook, in the judgment rendered on the second day after Buchanan's inauguration, to restore peace and harmony to the country by forcing upon it the pro-slavery construction of the constitution in its most radical form, as an inviolable law. But since this could not be done by the simple decision of the case before it, it pleased the court to decide all the questions discussed by counsel. It was thus placed beyond a doubt that the audacious undertaking would turn out to be a service rendered to the cause of liberty, and that Chase's prophecy would be fulfilled. Under the combined pressure of their historical development, of their actual circumstances, of their moral convictions and the people's own constitutional views, even this formally final judg ment was fated to be ultimately reversed; but the victory was destined to be rendered exceedingly difficult by the conservative feelings and scrupulous fidelity of the people to the laws. Yet even the most refined judicial subtlety could not convince the American masses that a court might, for political ends, decide every controverted constitutional question which could in any way be brought into connection with a concrete case at law; and "decisions" of the supreme court based upon a usurpation, boldly and openly admitted, signified nothing in their eyes except to the extent that they made it their duty to wage 1 Howard's Rep., Williams' ed., Book 15, p. 721. 2 Warden, Life of S. P. Chase, p. 313. the war against slavery more energetically than ever, because such decisions proved that even the supreme court of the United States had completely succumbed to the deadly influence of the pestilential breath of slavery. And this must all the more certainly be the effect of the work of "peace," to which the supreme court of the United States believed itself called, since Taney's argument although it preserved much better by its technical form the appearance of impartial pragmatism— placed the fact that the supreme court had been guilty of a usurpation in a more glaring light than had Wayne's imprudent frankness. Two principal questions, said the chief justice, were presented by the record: 1st. Had the circuit court jurisdiction? 2d. If it had jurisdiction, is the judgment it has given erroneous or not? From the way in which Taney put these questions it is plain that the second supposed that the first must be answered in the affirmative. He, however, in the name of the court, answered it in the negative. The negative was founded on the claim that the descendants of negro slaves were not citizens within the meaning of the constitution. The demonstration of this proposition was, in its essential parts, not juridical but historical. From the fact that, on both sides of the Atlantic, negroes had always been considered subordi. nate beings and had no rights except such as were granted them, it was inferred that the framers of the constitution could not have looked upon negroes as copossessors of sovereignty, that they could not have looked 1"They were at that time 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." THE DRED SCOTT CASE. 33 upon them as citizens. And so it was inferred from the exclusive right of naturalization vested in congress that it could not have been intended' to allow the states to make citizens of persons of color, because as such they would have been much more dangerous to the peace and safety of a great part of the Union than the few foreigners by reason of whose naturalization a state would perhaps have given good ground for complaint. When the chief justice of the United States advanced such shallow and arbitrary reasoning as constitutional arguments which were to govern in the decision of legal questions of the most eminent importance, and, in the real meaning of the words, of awful political significance, what became of the proud claim of the American people. that they had "a government not of men, but of laws?" With such a method of interpretation, there was nothing that could not be tortured out of the fundamental law of the Union, and nothing one wished to find that could not be discovered in it. If, as should have been done, the question of fact were examined, whether, in the United States, negroes born free could ever, or under certain conditions, be "citizens of the United States within the meaning of the constitution," a very different result would have been reached; and Taney's own reasoning pointed out the road to be taken in such an investigation. After he had correctly shown that a citizen of a state is not always necessarily a citizen of the United States, and why he is not,' he just as correctly proves that all who 1" We cannot fail to see that they could never have left with the states a much more important power." 21, however, share the opinion of Justice Curtis, that, even before the adoption of the fourteenth amendment, "every free person born on the soil of a state, who is a citizen of that state by force of its were citizens of the individual states, at the time of the adoption of the constitution, became citizens of the United States also. But now, instead of inquiring- as he had promised to do1-whom the constitutions and laws of all the states had recognized as citizens, he proves (!) from the views concerning negroes then prevailing, from the fact that the celebrated introductory sentences of the Declaration of Independence should not be understood in their literal sense, and from the provision of the constitution that the importation of slaves should not be prohibited the states until the year 1808, that "the general terms in the constitution of the United States as to the rights of man and the rights of the people" should not be extended to the negro race, and that it was not intended to grant them any share in the blessings of the provisions of the constitution. This was his answer to the question, what had been the law in the several states relating to free persons of color? Spite of his great age, Taney was still in full possession of his intellectual faculties, and justice to the republicans, therefore, demands the admission that he had not made it an easy matter for them to believe in his bona fides. That there had been free persons of color who were citizens, in the dif ferent states, was as undeniable a fact as the Declaration of Independence and the constitution itself; it was moreover a universally known fact. But because Taney, constitution or laws, is also a citizen of the United States." Williams, loc. cit., pp. 771, 772. 1 "It becomes necessary, therefore, to determine who were citizens of the several states when the constitution was adopted.” 2 See the proofs of this in the opinion of Judge Curtis. Williams, loc. cit., pp. 770, 771. Other interesting proofs are to be found in Congr. Globe, I Sess. 35th Congr., pp. 211, 212. Particular attention should be called to the fact that Virginia in 1783 repealed a law of May 3, 1779, according to which only white men could be citizens, THE DRED SCOTT CASE. 35 however, did not really examine, but only sought to prove an untenable assertion, under the guise of investigation, he had to substitute sophistical reasoning on the proposition to be proven for the answer to his own question; for this answer overthrew his argument entirely. No matter how all further questions, and especially that in the present case, i. e., the Dred Scott case, in relation to the constitutional status of free persons of color, might be answered, this much is certain, that if all those who, at the time of the adoption of the constitution, were citizens of the separate states became citizens of the United States likewise, and if there were free persons of color at that time in certain states who were also citizens, then the incorrectness of what Taney sought to prove, and pretended to clothe with the binding force of a judicial decision, was demonstrated, viz.: that persons of color could not be, and had never been, citizens of the United States, within the meaning of the constitution. But, certain as it was that Taney had not proven his proposition, he could appeal in its favor to the decision of a state court,' to the official opinions of two attorneys 66 and according to the new law "all free persons born within the territory of this commonwealth . . . shall be deemed citizens of this comp mmonwealth." The boldness of the attempt, however, to dispose of the matter by vague, general reasoning on notorious facts is placed in the clearest light by this, that the motion of South Carolina to insert the word white" between "free" and "inhabitants" in the fourth article of the Articles of Confederation, was denied. The article reads as follows: "The free inhabitants of each of these states - paupers, vagabonds and fugitives from justice excepted — shall be entitled to all privileges and immunities of free citizens in the several states." The State v. Claiborne, 1 Meigs (Tenn.), p. 331. "The citizens spoken of (art. IV, sec. 2, § 1) are those entitled to all (!) the privileges and immunities of citizens. But free negroes were never, in any state, entitled to all the privileges of citizens, and consequently were |