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A History of the United States by Cecil Chesterton

This decision was the judgment of Roger Taney


The

Republicans might have done even better had the decision of the Supreme Court on an issue which made clear the full scope of the new Southern claim been known just before instead of just after the election. This decision was the judgment of Roger Taney, whom we have seen at an earlier date as Jackson's Attorney-General and Secretary to the Treasury, in the famous Dred Scott case. Dred Scott was a Negro slave owned by a doctor of Missouri. His master had taken him for a time into the free territory of Minnesota, afterwards bringing him back to his original State. Dred Scott was presumably not in a position to resent either operation, nor is it likely that he desired to do so. Later, however, he was induced to bring an action in the Federal Courts against his master on the ground that by being taken into free territory he had _ipso facto_ ceased to be a slave. Whether he was put up to this by the Anti-Slavery party, or whether--for his voluntary manumission after the case was settled seems to suggest that possibility--the whole case was planned by the Southerners to get a decision of the territorial question in their favour, might be an interesting subject for inquiry. I can express no opinion upon it. The main fact is that Taney, supported by a bare majority of the judges, not only decided for the master, but laid down two important principles. One was that no Negro could be an American citizen or sue in the American courts; the other and more important that the Constitution guaranteed
the right of the slave-holder to his slaves in all United States territories, and that Congress had no power to annul this right. The Missouri Compromise was therefore declared invalid.

Much of the Northern outcry against Taney seems to me unjust. He was professedly a judge pronouncing on the law, and in giving his ruling he used language which seems to imply that his ethical judgment, if he had been called upon to give it, would have been quite different. But, though he was a great lawyer as well as a sincere patriot, and though his opinion is therefore entitled to respect, especially from a foreigner ignorant of American law, it is impossible to feel that his decision was not open to criticism on purely legal grounds. It rested upon the assertion that property in slaves was "explicitly recognized" by the Constitution. If this were so it would seem to follow that since under the Constitution a man's property could not be taken from him "without due process of law" he could not without such process lose his slaves. But was it so? It is difficult, for a layman at any rate, to find in the Constitution any such "explicit recognition." The slave is there called a "person" and defined as a "person bound to service or labour" while his master is spoken of as one "to whom such service or labour may be due." This language seems to suggest the relation of creditor and debtor rather than that of owner and owned. At any rate, the Republicans refused to accept the judgment except so far as it determined the individual case of Dred Scott, taking up in regard to Taney's decision the position which, in accordance with Taney's own counsel, Jackson had taken up in regard to the decision which affirmed the constitutionality of a bank.


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