Chapter III: Front Matter (3)

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.

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.

The movements of events have been so rapid, the work of generations being done in as many years, that Taney's character is already historic; and we can judge of it by his relation to the great event which alone will preserve it from oblivion.

In judging his public character as the head of the Judiciary of America, consider the _cause_ he sought to promote, his motives, the means he used, his resources as a jurist and a lawyer in that cause, the intended effect and actual results.

And of the cause this must be said and agreed by all, that there was never one of which a court could take cognizance in America, England, or the world so utterly evil and infamous as that of Slavery in the United States. Did he realize its extent? Yes, there were "few freedmen compared with the slaves," say only sixty thousand out of seven hundred thousand in 1789. He fully realized that, in repudiating the promise made for those seven hundred thousand, a pledge made with the most solemn appeal to man and to God, he utterly destroyed the rights and hopes of four million men. He knew he was deciding, for a vast empire, weal or woe; and he knew it was woe, or he had no sense of justice.

And his motives? He was not venal, not corrupt, not a respecter of persons. But there is something bad besides venality, corruption, and personal partiality. The worst of motives is disposition to serve the cause of evil. The country knows, the world will declare, none served it so well. But was he conscious of serving it? Yes,--unless the traitors so eagerly sought to put all these interests under his jurisdiction without motive,--unless his eager and unnecessary, and, as was declared and is now agreed, assumed jurisdiction over it, his "far-seeing" care and untiring defence of them, their appeal to his decisions, were all mistakes,--unless all these, and his manner, their motives, and the assured results, coincided so as by the law of chances was impossible,--he was conscious. To deny it is to say that he was imbued with the spirit of evil.

The world knows by what means he assumed to settle these questions. We have seen something of the nature of his arguments. With these, too, men are somewhat familiar, and by these let them judge of him as a jurist.

There is not in them all one faint recognition of the axioms of law,--one position founded on the laws of nature or the rules of eternal justice and the right,--one notice of the great primal rules laid down by all jurists and great judges of ancient and modern times, or of the precepts of religion by which any magistrate in a Christian land must expect to be governed, or to be held infamous forever. Nay, more: he does not recognize at all those fundamental principles of the Constitution and Declaration which are stated in plain terms in the first lines of both. He did worse than torture and pervert language: he reversed its meaning. He denied the undoubted facts of history. He denied the settled truths of science. He slandered the memory of the founders of the government and framers of the Declaration. He was ready to cover the most glorious page of the history of his country with infamy, and insulted the intelligence and virtue of the civilized world.

Where, outside his "_axiom in morals and politics_" can be found so monstrous a combination of ignorance, injustice, falsehood, and impiety? Ignorant of the meaning of an "axiom"; denying the truths of science; falsifying history; setting above the Constitution the most odious theory of tyranny, long before exploded; scoffing at the rules of justice and sentiments of humanity,--he tied in a knot those cords which must end the life of his country or be burst in revolution.

He well knew, too, what would be the effects of his decision. Avowedly he was ready to lay the time-honored principles of civil right and the ancient law at the feet of the Slave Power. The passions of a mighty people never raged more fiercely than whilst that last cause was before his court,--save in open war; and there was almost war then. He well-knew nothing would so force them to desperation,--the desperation of unlicensed barbarism or the immovable determination of truth and justice driven to the wall. He knew, or if he did not, was so ignorant that he was incompetent, that in such a contest on such fundamental principles, such a decision must end in revolution and civil war. If he dreamed of peace, then he was ready to seal the doom of four million, and at the end of this century of ten million souls.

In all these decisions he appeals to no one great principle. There is little in all his judgments to raise him above the rank of respectable jurists; and in these, presenting the fairest occasion ever offered to a true lawyer, to one fit to be called an American, nothing that will not cover his name with infamy, where, on far lesser occasions, Hale and Holt, Somers and Mansfield, covered theirs with honor, and added to the glory of their country, and did good to mankind.

He was not, indeed, of that class of the bad to which the profane Jeffreys and Scroggs and the obscene Kelyng belong. But he was as prone to the wrong as was Chief Justice Fleming in sustaining impositions, and Chancellor Ellesmere in supporting benevolences for King James; as ready to do it as Hyde and Heath were to legalize "general warrants" "by expositions of the law"; as Finch and Jones, Brampton and Coventry, were to legalize "ship-money" for King Charles; as swift as Dudley was under Andros; as Bernard and Hutchinson and Oliver were in Colonial times to serve King George III.; as judges have been in later times to do like evil work. Some of these, perhaps, had no conscious intent to do specific wrong. Their failure was judicial blindness; their sin, unconscious love of evil. But this question of Slavery towers above all others that Taney ever had to consider; America professed a loftier standard of justice than England ever adopted; the question of the liberty of a race is more important, the question whether the State is founded on might or on right is more vital, than those of warrants and ship-money, benevolences and loans; and Roger Brooke Taney sinks below all these tools of Tyranny.

Hobbes said, that, "when it should be thought contrary to the interest of men that have dominion that the three angles of a triangle should equal two right angles, that truth would be suppressed." Taney did deny truths far plainer than that,--the axioms of right itself. He did more than any other man to make actual that awful picture of the Great Leviathan, the Mortal God. How just, how true, were those last symbols of the State founded on mortal power! The end of the dread conflict of battle is the same as the end of the equally dreadful issue of the Court.

But those he served themselves with the sword cut the knot he so securely tied; his own State was tearing off the poisoned robe in the very hour in which he was called before the Judge of all. America stood forth once more the same she was when the old man was a boy. The work which he had watched for years and generations, the work of evil to which all the art of man and the power of the State had been subservient, that work which he sought to finish with the fatal decree of his august bench, one cannon-shot shattered forever.

He is dead. Slavery is dying. The destiny of the country is in the hand of the Eternal Lord.

THE MANTLE OF ST. JOHN DE MATHA

A LEGEND OF "THE RED, WHITE, AND BLUE," A.D. 1154-1864

A strong and mighty Angel,
Calm, terrible, and bright,
The cross in blended red and blue
Upon his mantle white!

Two captives by him kneeling,
Each on his broken chain,
Sang praise to God who raiseth
The dead to life again!

Dropping his cross-wrought mantle,
"Wear this," the Angel said;
"Take thou, O Freedom's priest, its sign,--
The white, the blue, and red."

Then rose up John de Matha
In the strength the Lord Christ gave,
And begged through all the land of France
The ransom of the slave.

The gates of tower and castle
Before him open flew,
The drawbridge at his coming fell,
The door-bolt backward drew.

For all men owned his errand,
And paid his righteous tax;
And the hearts of lord and peasant
Were in his hands as wax.

At last, outbound from Tunis,
His bark her anchor weighed,
Freighted with seven score Christian souls
Whose ransom he had paid.

But, torn by Paynim hatred,
Her sails in tatters hung;
And on the wild waves, rudderless,
A shattered hulk she swung.

"God save us!" cried the captain,
"For nought can man avail:
Oh, woe betide the ship that lacks
Her rudder and her sail!

"Behind us are the Moormen;
At sea we sink or strand:
There's death upon the water,
There's death upon the land!"

Then up spake John de Matha:
"God's errands never fail!
Take thou the mantle which I wear,
And make of it a sail."

They raised the cross-wrought mantle,
The blue, the white, the red;
And straight before the wind off-shore
The ship of Freedom sped.

"God help us!" cried the seamen,
"For vain is mortal skill:
The good ship on a stormy sea
Is drifting at its will."

Then up spake John de Matha:
"My mariners, never fear!
The Lord whose breath has filled her sail
May well our vessel steer!"

So on through storm and darkness
They drove for weary hours;
And lo! the third gray morning shone
On Ostia's friendly towers.

And on the walls the watchers
The ship of mercy knew,--
They knew far off its holy cross,
The red, the white, and blue.

And the bells in all the steeples
Rang out in glad accord,
To welcome home to Christian soil
The ransomed of the Lord.

So runs the ancient legend
By bard and painter told;
And lo! the cycle rounds again,
The new is as the old!

With rudder foully broken,
And sails by traitors torn,
Our Country on a midnight sea
Is waiting for the morn.

Before her, nameless terror;
Behind, the pirate foe;
The clouds are black above her,
The sea is white below.

The hope of all who suffer,
The dread of all who wrong;
She drifts in darkness and in storm,
How long, O Lord! how long?

But courage, O my mariners!
Ye shall not suffer wreck,
While up to God the freedman's prayers
Are rising from your deck.

Is not your sail the banner
Which God hath blest anew,
The mantle that De Matha wore,
The red, the white, the blue?

Its hues are all of heaven,--
The red of sunset's dye,
The whiteness of the moon-lit cloud,
The blue of morning's sky.

Wait cheerily, then, O mariners,
For daylight and for land;
The breath of God is in your sail,
Your rudder is His hand.

Sail on, sail on, deep-freighted
With blessings and with hopes;
The saints of old with shadowy hands
Are pulling at your ropes.

Behind ye holy martyrs
Uplift the palm and crown;
Before ye unborn ages send
Their benedictions down.

Take heart from John de Matha!--
God's errands never fail!
Sweep on through storm and darkness,
The thunder and the hail!

Sail on! The morning cometh,
The port ye yet shall win;
And all the bells of God shall ring
The good ship bravely in!

NEEDLE AND GARDEN.

THE STORY OF A SEAMSTRESS WHO LAID DOWN HER NEEDLE AND BECAME A STRAWBERRY-GIRL.

WRITTEN BY HERSELF.