The Atlantic Monthly, Volume 15, No. 88, February, 1865: A Magazine of Literature, Art, and PoliticsVarious
General
The Atlantic Monthly, Volume 15, No. 88, February, 1865: A Magazine of Literature, Art, and Politics
Various
American periodicals
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.
Public-domain text, read in full here on John Shaqi.
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