164
The Green Bag
tion of servitude would not reattaeh to him on his return into Missouri.
If it was decided that Scott was not within the Constitution by reason of his African descent, then it was clear enough that the circuit court had no
jurisdiction, and the order would be to direct that court to dismiss the case,
and there would be no necessity of tak ing up the second question.
Both ques
overwhelming majority in an effort to accom plish justice finds itself arrested in its course by another majority of a body of six or more who happen to have a different opinion upon substantially the same questions, but who speak with a different authority, and to utter the will of the law, the consequences can
hardly fail to be disastrous to the law itself. The popular majority, if persistent, is likely to find its way to the accomplishment of its end over the ruin it may be of any Constitution, or of any court.
tions were presented at the first argu ment Feb. 11, 1856, and after consulta
tion by the court the case was assigned
to Mr. Justice Nelson to write the opin ion upon the first ground, to which Justices McLean and Curtis announced that they would dissent. After Judge Nelson had written the opinion, Mr. Justice Wayne, believing that if the
When Taney died, Congress refused the customary portrait bust of the Chief Justice to be placed in the court room, and it was not until the death of Chief Justice Chase in 1873 that the statues of both were voted, and his efiigy in
marble was fittingly placed by the side of his illustrious predecessor. But as time wore on, as the intensity
second question was decided the agita of views over the abolition of slavery tion over slavery would cease, persuaded
the Chief Justice and the majority of his associates to take up and decide the
constitutionality of the question whether
became modified and normal national judgment resumed its sway, the opinions of men changed and a more just estimation began to prevail. One by one the impu
Congress had the right to prohibit sla
very in the territories. May 12, 1856, a reargument was accordingly ordered, which took place Dec. 15, 1856, and the
tations cast upon him have been shown to have been groundless, by Tyler, Curtis, Reverdy Johnson, Clarkson N. Potter, Blaine, Carson, James Ford Rhodes,
case was decided March 6, 1857, in a
majority opinion written by the Chief
Professor Mikell and others, until the eclipse of this malign influence has
Justice sustaining the ruling below, and passed from ofi his fame, and in the
further declaring that Congress could not constitutionally prohibit slavery in the territories carved out of the Louisiana Purchase. An irretrievable
firmanent of our jurisprudence his repu tation as a great jurist and upright judge
glows with steady radiancelg“ But al though the opinion in the Dred Scott
mistake was thus made in going beyond
the record.18 In his argument in Pollock v. The Farmers’ Loan & Trust Com
pany,19 the late James C. Carter uttered this profound warning :— Nothing can be more unwise or danger ous, nothing more foreign to its spirit, than attempts to baflie and defeat a popular deter mination by a judgment in a law suit. If an 1' See Monthly Law Review N. S. v. 10, p. 61, for an instructive review of the Dred Scott case. The article is said to have been p ared by the late Judge Lowell or the late Judge oraoe Gray. 1' 158 U. S. 601.
case was written when the Chief Justice was eighty years of age, the time to lay the judicial armor off had not yet come, and at fourscore he held on his way with mental vision undimmed, and his
intellectual power unabated. He was yet to vindicate his unwavering stand with Jackson against nullification and disunion in whatever form it might show its presence, in an opinion in which, with u"I am indebted to these writers for many of the facts and incidents used in this paper.
