566

The Green

to draw support for his conclusion from the previous decision in the Florida case, but he was not able to reconcile his view with that case. The opinions in the case and subse quent statements made by the judges, au thorize the conclusion that the court attempt ed that which is always perilous, namely, to do more than to determine the rights of the parties. Upon a previous argument a con clusion had been reached adverse to the plaintiff's right to freedom. An opinion was then prepared by a member of the court, placing the denial of the right upon the con clusiveness of the adverse judgment of the state court. It finally appeared as the separate opinion of Mr. Justice Nelson. But before the announcement of the decision the suggestion prevailed that the case should be re-argued and the decision placed upon the ground finally announced by the Chief Jus tice. The court supposed it could thus aid in allaying the excitement respecting slavery. The sequel followed rapidly, and it became certain that a barrier of straw had been set against the spread of a conflagra tion. That Judge Taney and those who acted with him did not appreciate the tre mendous forces which were forming for the overthrow of slavery, is clear. Who did? In the face of the criticism and condemna tion which came upon him from the North he bore himself with admirable dignity and pro priety, neither retorting upon his critics nor encouraging his friends to do so. That he was not indifferent to such criticism was shown by his filing a supplement to his opinion about two years later, exhibiting much research in English history and judi cial decisions, to show that he had not erred in his definition of citizenship. But the sup plement availed nothing, for it did not sup port the original opinion at the point of its most obvious weakness. In 1858 the court was called upon to re

verse a judgment of the Supreme Court of Wisconsin by which that court had attempted to release one under sentence of a federal court upon conviction of a violation of the fugitive slave law, the state court being of the opinion that the law was unconstitutional. The judgment was of course reversed, and the opinion of the Chief Justice was admi rable for the clearness and vigor with which it upheld federal authority, and affirmed the duty of the Supreme Court of the United States to shield it from invasion by the States. Indeed, the opinion sounds like an echo of Marshall's great opinion, delivered forty years earlier, promulgating the same doctrine. But his critics were implacable. Indeed, they affirmed that the Chief Justice, at other times unable to recognize federal power, was quick to assert it in the interest of slavery. They even made the baseless criticism that the conclusion was inconsistent with the decision in the Dred Scott case, be cause if congress could not by legislation fix the status of a black man in a territory, much less could it do so in a State. This criticism, of course, gave no heed to the pro vision of the constitution with respect to the reclamation of fugitives from labor. Such was the effect of four years of intemperate criticisms of the Chief Justice upon the al ready excited people who made and heard them, that there was general expectation as the fourth of March, 1861, approached, that he would refuse to administer the oath of office to Mr. Lincoln. For that expecta tion there was an obvious reason. Such re fusal would be consistent with the unreal character with which his critics had invested him. Judge Taney was now more than eighty years old, but another visitation of public wrath lay between him and the close of his career. After the opening of the civil war a petition was presented to him on behalf of