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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 bias, 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.

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fundamental principles of law which it had itself frequently 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. The supreme court of Missouri, however, to which an appeal was taken, reversed 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

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

denied the jurisdiction of the court on the ground that Dred Scott, as a negro and the descendant of negro slaves, was not a citizen of the state of Missouri, and therefore could not, by virtue of art. III, sec. 2, § 1, of the constitution, bring suit in a federal court. The court declared this plea invalid, but instructed the jury that Dred Scott, according to the laws in force, had no claim to freedom, and he was, therefore, adjudged to Sandford as his slave. Dred Scott now appealed to the supreme court of the United States. In the spring of 1856 the case came up for argument, but no decision was rendered. Judge Campbell subsequently stated that this was brought about by Judge Nelson, because he had as yet formed no fixed opinion on the question at issue, whether it was necessary for the supreme court to subject the decision of the circuit court to a revision, which decision had declared Sandford's objections to its jurisdiction invalid; and that Nelson's proposition to hear the attorneys of both parties on "that and other questions" again, was unanimously adopted. In republican circles, this not enter, because the special constitutional questions involved in it have no independent political significance. Even the principal constitutional question I shall discuss as briefly as possible. In what I say, in the text, I shall confine myself, as much as possible, to the political aspect of the question; for that aspect alone gives the case its eminent, historical importance.

1 See Campbell's letter of November 24, 1870, to G. Tyler, in the latter's Memoir of Roger B. Taney, pp. 382, 383. Gooch said, on May 3, 1860, in the house of representatives: "It was not until two of the judges dissented from the opinion of the majority of the court that Dred Scott was a slave, and proposed to publish their opinions, that the majority felt it to be necessary to express opinions in relation to the constitutionality of the Missouri compromise.

"It was then that the court ordered the case to be re-argued for the purpose of ascertaining whether it could be made to appear that that act was unconstitutional." Congr. Globe, I Sess. 36th Congr., App., p. 293.

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postponement of the decision was believed to be connected with the impending presidential election.'

After the case had come up again for argument, the majority of the judges resolved to confine the judgment of the court to the case before them, and Justice Nelson was intrusted with the writing of the argument which was to serve as the ground of the decision. It should have needed no special resolution to confine the judgment of the court to the case before them; such a course should have been considered simply self-evident. This, however, was so far from being the case that the resolution was afterwards reversed, and Chief Justice Taney requested to write the opinion of the court. Nelson had already finished the task intrusted to him, and it now stands as his personal opinion in the records of the Dred Scott case. Hence the original and real opinion of the federal supreme court is not Taney's, but is to be found in Nelson's argument, and it, therefore, should be examined first. The proper appreciation of the remarkable and sudden change which turned the original minority of the judges into a majority will thus be greatly facilitated.

Nelson was of opinion that the supreme court had no

1 Judge Curtis writes, on the 8th of April, 1856, to Ticknor: "The court will not decide the question of the Missouri compromise line,— a majority of the judges being of opinion that it is not necessary to do so. (This is confidential.) The one engrossing subject in both houses of congress and with all the members is the presidency; and upon this everything done and omitted, except the most ordinary necessities of the country, depends." Curtis, A Memoir of Benjamin Robbins Curtis, I, p. 180.

2"The instruction of the majority, in reference to the preparation of this opinion, was to limit the opinion to the particular circumstances of Dred Scott; and Mr. Justice Nelson prepared his opinion, on file, under this instruction, to be read as the opinion of the court." Campbell, in the letter quoted loc. cit., pp. 383, 384.