yet in a state of colonial vassalage. It cannot be easily or suddenly removed, yet, while it continues, it is a blot on our national character; and every real lover of freedom confidently hopes that it will be effectually, though it must be gradually, wiped away, and earnestly looks for the means by which this necessary object may be best attained." The jury, after being out only a few minutes, returned with a verdict of not guilty. A report of the trial was at once published, with a letter from Mr. Gruber, in which he says: "I hope, while I keep my senses, I shall consider involuntary, perpetual slavery, miserable injustice; a system of robbery and theft."

Mr. Taney stood high in the public estimation; he was a popular man, trusted and confided in by the people. The purity of his life, and the integrity | with which he discharged his duties as a citizen, and as a lawyer, were never called in question. He was regarded as a true representative or leader of opinion; he was twice put in nomination as the candidate of the federal party during his residence at Frederick; once for the house of delegates, and once for congress. Though defeated on both occasions, his allegiance to his party remained unchanged; he stood by his opinions in the day of adversity like an honest man. He remained a federalist until the war of 1812 had gone on for some time; and until the leaders of that party in the Eastern States had, by opposing the war during its progress, begun to cripple the government. The attack upon Washington and Fort Henry had aroused deep feeling in that part of the country. His party began to divide; some opposing the war utterly, as in the beginning, and some supporting the government in its prosecution. Naturally and justly, as we think, he held it to be the duty of the citizen to support the country against the enemy, without stopping to discuss the wisdom of the acts leading to the war. He interpreted his duty correctly in the light of public law; for by that law as declared by the highest court of our State, in the days of Kent and Spencer, every man is a party to the acts of his government. This may appear theoretical; it certainly raises a question of morals, precisely the same question as that raised by Decatur's famous toast"My country, right or wrong." The opposite view, my country only when it is right according to my theory, leads to anarchy and national humiliation; it denies the unity of the Republic, and it repudiates the just authority of government.

Just at the close of the war (in 1816), Mr. Taney was elected by common consent a member of the senate of Maryland; and served out his term of five years with great advantage to the State, and apparently with much satisfaction to himself. His biographer tells us, he was not fond of public life, and did not much value or seek after political honors. Without this assurance and judging solely from the facts of his life, we should have inferred exactly the

contrary. Nevertheless, we must admit that these facts are consistent with a higher love for his profession, and that he rose steadily to the highest position at the bar in his native State. He had become a supporter of General Jackson for the presidency, and he was in 1827 appointed attorney-general of Maryland. This appointment was made by Gov. Kent, a warm supporter of the administration of Mr. Adams; it conferred upon him considerable power and influence; and it imposed upon him a heavy burden of hard work, work which he performed with ability and unflagging industry.

When the cabinet of General Jackson broke up, in 1831, some two years after his inauguration and under rather singular circumstances and influences, Mr. Taney was appointed attorney-general of the United States, and thus came into association and friendly relations with one of the most remarkable men ever chosen to the presidency. Without going into particulars, it is clear that his appointment was suggested and brought about through the influence of his friends; and that he afterward won the confidence of Jackson. Martin Van Buren did the same thing. And yet these two men, of about equal powers and with some points of resemblance, were utterly unlike each other in the real substratum of character, and they were both utterly unlike the old hero of New Orleans, whose inflexible will appears everywhere as the chief element, the main strength of his nature.

Every one knows the steps of Taney's advancement; how President Jackson waged war on the United States bank; how the bank used its means, its peculiar weapons of offense without scruple or conscience; how the president resolved on the removal of the United States deposits to the State banks; how his secretary of the treasury, William J. Duane, refused to make the order to that effect; how Jackson removed him at once and appointed Taney in his stead; how the latter immediately made the order, appointing certain State banks as the depositories of the public fund; how this act was justified in the president's message to congress, and criticised by that body; how the appointment of the new secretary of the treasury was sent to the senate for confirmation, and instantly rejected by that body; and how Mr. Taney thereupon resigned the office and went home to Baltimore, a political martyr, as Mr. Van Buren came home from England.

Early in 1835, a vacancy happening on the bench of the United States Supreme Court, the president at once nominated Mr. Taney for the place, and the nomination was "indefinitely postponed." The war of parties went on; the great Chief Justice Marshall died in the summer, and the president, in December, nominated Roger B. Taney to fill his place. The majority in the senate had passed over to the side of the administration, and in March, 1836, the nomina

tion was confirmed. The boy that had walked home from college, eighty miles in two days, was now chief justice of the United States.

We have had a good many presidents; only a few chief justices. John Jay, an honored name in the history of New York, held the office till 1794, when he was sent minister to England.

John Rutledge, of South Carolina, was then appointed, and held the office one term; his appointment was not confirmed.

Oliver Ellsworth, of Connecticut, succeeded, and held the office till '99, when he was sent minister to France, as Jay had been sent to England. In January, 1801, John Marshall, of Virginia, was nominated to the office, and unanimously confirmed. It is worthy of notice that these four men were federalists, that they were not men of extreme opinions, but men of large experience and great natural capacity. The fifth in the line was educated in the same school of politics. Not until the great rebellion had been well nigh conquered, not until 1864, was that high office filled by a man, Salmon P. Chase, educated in the political faith of Thomas Jefferson.

For many years Chief Justice Taney administered the law, and discharged the duties of his office, with great satisfaction to the country. It was thought by some that he showed a leaning toward the doctrine of State rights, a tendency to limit the powers of the general government to the strict letter of the constitution. He certainly showed no disposition to enlarge the jurisdiction of that great court over which he presided; an excellent virtue this, in the judge of a court constituted like that; the more excellent because it involves a voluntary restraint upon the natural ambition and love of power incident to men and courts in all ages, and because a love of power indulged in this branch of the government must work harm in the action of the others, and so destroy the equilibrium of the whole. To appreciate the obligations of his office, a judge of this court must be a statesman, he must comprehend the relation in which the States stand to each other, and to the Union; and he must also, in the administration of justice between man and man, mingle or interpret the rules of law with good sense and sound reason.

I shall not dwell upon, or even enumerate the important public questions that came before the court while Judge Taney held a seat upon the bench. They were met as they arose, with candor and fairness.

But there is one novel case, of no sort of public interest, tried before him at the circuit in Baltimore, which I must mention. It involved a question of copyright. Reed of Boston had copyrighted the air to the song known as the Old Arm Chair; and as the piece was popular, Carusi, of Baltimore, adapted the words to a similar air, and was selling the song in this, its new form; and the action was brought by Reed for an infringement of his copy

right. The question for trial was one of fact, viz., whether the defendant's new air was really a new and original composition, or a mere evasive imitation of the old one. It was a question relating to the fine art of music, and it could only be determined by experts. So witness after witness was called on the question, and their testimony, like that of their fellows everywhere, was not very harmonious; finally the plaintiff's counsel proposed that Mr. John Cole, a professional singer, should be sworn and required to sing the two songs to the jury, so that they might judge whether the two airs were similar or not. After a long debate the motion was agreed to by the court, and Mr. Cole, under oath, proceeded to sing to the judge and jury:

"I love it, I love it, and who shall dare

To chide me for loving that old arm chair!" After hearing both songs, the jury, solid men of Baltimore, were unable to distinguish between the two, and therefore gave their verdict for the plaintiff. We see no fault to find with the ruling; the plaintiff was only allowed to read the two compositions to the jury, and surely it was their business to decide on this question of fact.

The chief justice possessed many elements of greatness; a mind of singular grasp and subtle discrimination. He had been distinguished at the bar for his rare capacity as a special pleader. He was equally distinguished on the bench for his readiness and facility in dealing with questions of form and practice, presented in cases coming up from so many different States. His intelligence and intellectual activity were of a high order; and he was a wise man, after his type of character. He was a good presiding officer; his opinions were well considered, and written in the clear judicial style, becoming a high court of justice. He was a man of pure life, the desires and pursuits of his mind were not corrupted by that reasonable alloy of ambition which entered into the pure gold of his character. Through all the earlier years of his administration, he bore himself calmly in his high office, with dignity and discretion. He had gained the confidence of the country; he was respected and trusted as a capable and worthy administrator of justice and law.

Without much personal or affirmative power, he possessed the influence accruing to him from his high position, and an immense power as a check on the action of congress. It may be that, as he advanced in years, his pride was flattered by the unassailable position he held, and by the exercise of such high prerogatives. One does not like to assert an ungracious thing; but we must all admit that, had this been the truth, it would have been only natural.

It was his fortune to come upon a great duty, in the ordinary course of judicial administration. Oddly enough it came in the form of a civil suit for an assault. The action was brought in the United States

Circuit Court by Dred Scott, a resident of Missouri, against John F. A. Sandford, of New York, for the act of arresting and imprisoning the plaintiff and his wife, and their two children, Eliza and Lizzie, one of them seven, and the other fourteen years of age. The defendant interposed a plea to the jurisdiction of the court, on the ground that Scott was not a citizen of Missouri, but a negro whose ancestors were brought into the country and sold as slaves. Scott admitted the facts alleged against his ancestors, by a demurrer; and the court held that these facts were not sufficient to call for a dismissal of the suit. The defendant then pleaded to the merits of the action, and averred that Scott and his family were his slaves, his lawful property.

The answer of Scott presented his claim to freedom on these grounds: that in 1834, he was the slave of Dr. Emerson, a surgeon in the army, and was taken by him first to the military post of Rock Island, in Illinois, a free State, and from there to Fort Snelling on the west bank of the Mississippi river, in the territory of upper Louisiana, north of thirty-six degrees and thirty minutes of north latitude, where he remained two years, and where he was married to his wife, who had also been taken there as the slave of a major in the army; their oldest child being born on the river, north of Missouri, and the younger after they were brought back into the State of Missouri. On these facts a verdict was rendered affirming the defendant's right to Scott and family, as his slaves.

This was the celebrated case that came up before the supreme court at Washington for review. A cause more important in its bearings or more simple in form never came up for decision before this august tribunal. The real parties plaintiff were four million strong, and the real defendants numbered about sixty thousand. On the side of the plaintiffs, was the silent divine sense of justice; on that of the defendants there was law, capable of being wielded either in favor of freedom or slavery.

The indictment and trial of the seven bishops played an important part in English history; the recoil against the government, created by the verdict of the jury, developed an opinion, born of mingled reason and passion, which at length drove James the Second from the throne. It was a government prosecution, and it brought in a new line of kings.

The decision in the Dred Scott case was foreshadowed in the inaugural message of President Buchanan; it was hailed by him as the voice of authority that was to settle forever the vexed question of slavery or freedom in the territories of the Union.

Let us recall the situation: ever since the Missouri compromise of 1820, for more than a generation, slavery had been prohibited in the territories of the Union, by a law of congress, north of thirty-six degrees and thirty minutes. By a mad act of folly and ambition, this statute, whose validity was not previously questioned, was repealed in 1854, when the

territories of Kansas and Nebraska were organized. The repeal re-opened a great debate, and brought in a fierce conflict; a debate on the merits and rights of slavery throughout the Union, and a conflict on the territory of Kansas to secure the organization of the new State. This controversy was going on with great heat and passion when this remarkable cause was heard, and when Mr. Buchanan was sworn into office.

It was not a fictitious case, the facts were real; but the question as to the jurisdiction of the United States Circuit Court was argued in St. Louis in April, 1854, while the question of the repeal of the Missouri compromise was pending before congress.

On review the cause was twice argued. It was capable of being decided on the ground that the courts of the United States had no jurisdiction; or on the ground that the laws of Missouri, from which State the appeal came, were controlling and conclusive. But because one of the parties plaintiff was born above the line of 36° 30′ it seemed to give the opportunity to discuss and decide on the validity of the act of congress prohibiting slavery north of that line, and consequently upon the right to hold slaves in all the territories of the Union.

The court had no sympathy with the enslaved people. A majority of the judges came forward, beyond the issues presented, to uphold and maintain the institution in its utmost rigor. They decided first on the question of jurisdiction, that a negro man could not be a citizen, and therefore could not bring a suit in the United States Circuit Court against the citizen of another State; that he could not be treated as a citizen because he was regarded by the framers of the constitution as having no rights, and no lot or part in the body of the people; not even so good a status aš a private corporation, a mere creature of the law has; and second, that while congress may organize and make all needful rules and laws for the government of a territory, it could not exclude slavery or legally establish the famous Missouri compromise of 1820; and that the people of a territory were equally without power to act upon the subject, because the constitution carried or recognized the institution as already existing in all the territories. From such a skillful combination of negative conclusions, with one daring affirmative, the inference was easy that Scott could not acquire his freedom by being taken into the territory north of the historic line of 36° 30′ and that his oldest child born above that line was nevertheless a slave.*

* Chief Justice Taney, Md., leading opinion. Wayne, Ga., agreeing with him.

Greer, Pa., agreeing with him and with Nelson; prima facie jurisdiction.

Daniels, Va., agreeing with him.

Campbell, Ala., agreeing with him (does not touch ques tion of jurisdiction).

Catron, Tenn., agreeing with him, on other grounds; asserts power of congress on other subjects.

We do not question the personal integrity or good faith of these judges. Without being aware of it, they were being carrried forward on a mighty current of opinion; in truth, as in theory, they delivered an impersonal opinion; they declared the law as they had been trained and educated to apprehend it. The dissenting judges did the same thing; coming to an exactly opposite conclusion. Perhaps no decision ever pronounced in America shows more clearly the animus or what Montesqieu calls the spirit of the law; meaning thereby the natural drift and purpose of the law-creating mind in a State or nation.

It is now only sixteen years since the decision was pronounced; and it stands there in the nineteenth volume of Howard's Reports as obsolete and dead as the slave code of Rome; the record of it has been blotted out with the blood of a civil war, and on its page has been written the new law of equal rights for all men.

There are two considerations bearing upon the decision which perhaps ought not to be overlooked; one relates to citizenship, and the other to the merits and defects of a written, and therefore inflexible constitution. From the earliest times the term citizen has carried with it the notion of privilege. During its early history, the citizens of Rome constituted a real aristocracy. Following out the law of her development, the rights of citizenship were at length extended to the body of the people, to other communities and even to distant towns and cities. We find the word conveying a similar sense in modern times. It flashes out in the first French revolution, a name of such potential charm that it ends, after a while, in a citizen king. No one stops to inquire precisely what rights belong to him as a citizen. We all assume without debate, we have been educated up to this point, that whoever has the right to vote and own the soil he cultivates, is a citizen; and yet we all know that a woman and a child is compassed about with the rights of citizenship.

The consequences flowing from a written constitution meet us every day. They assume the features of sharply defined statute law; and so we often find a great question of public and State policy hinge upon the interpretation of a single word or phrase. The court is under oath, sworn to uphold the constitution; it is not free to seek out the path of reason; it must go by the written law. Under an unwritten constitution, like that of England, the courts, and

Nelson, N. Y., agreeing with him, hardly touches the power of congress, goes upon the laws of Mo., and question of jurisdiction.

McLean, O., dissents totally. Curtis, Mass., dissents totally.

Conclusion: "That it appears by the record that the plaintiff is not a citizen of Missouri, and that the circuit court of the United States for that reason had no jurisdiction in the cause and could give no judgment in it. Judgment for that reason reversed, with a direction that the suit be dismissed for want of jurisdiction."

every branch of the government, have much greater freedom; reason, guided by precedent, plays a more important role; the constitution is not amended by a positive act, it is developed, like the common law, by the inspiring reason which gives form and character to every growing people.

The memoir of the chief justice is written, as its author tells us, to vindicate the chief against the unjust aspersions, hatred and calumny, which were provoked by this celebrated decision. It reproduces the opinion, and aims at a reversal of the public judgment; unwisely, as we think, it attempts to justify the uncalled for decision of a bare majority of the court, denying to congress the right of affirmative legislation over a territory, on one subject only. The fame of the chief justice is secure, if it be left to the main current and tenor of his life; it is not so secure when it is made to hinge on the correctness of a judgment hardly supported by the strict letter of the law, with an adverse action upon a disfranchised race.

The chief justice had presided over the court now more than twenty years, and he was in the eightieth year of his age when the opinion was pronounced. It is scarcely fair to his memory, to seize upon the decision as a just criterion of his merits as a magistrate. It may show, it certainly does show, great intellectual vigor.

It is claimed in his defense, and the remark is often made, that he did not express it as his personal opinion that "a negro has no rights which a white man is bound to respect." And this claim is literally true; he attributes this opinion to the people and age in which the constitution was framed: the apology is nevertheless one of verbal criticism, rather than one of substance; because, as we understand the subject, it is the opinion then pronounced by the court which was relied upon to infuse that opinion into the constitution. A plain man cannot find the sentiment in the words of that great document; and if he deal candidly with the history of those times, he will be slow, he will hesitate to impute to its framers an opinion so iniquitous and so at war with historic truth.

We have here a peculiar phase of character. This eminent man refused to own a slave, and yet gave the weight of his office and juridical skill to strengthen an evil heritage. Full of clemency toward the individual, he almost created a common law to uphold the system.

Let us, however, deal justly with his memory. He showed no bias of mind in his ordinary duties as a judge. He lived to the great age of eighty-seven, discharging the duties of his office with all fidelity. He lived in charity and good will toward men, and died at last without a stain upon his personal characHe saw the light before the battle of Saratoga had been fought, and, well stricken in years, he heard also the thunders of Gettysburg.

ter.

CURRENT TOPICS.

Some of the Washington correspondents allege that the President has concluded to tender the office of Chief Justice to Senator Conkling, and the newspapers are discussing the matter in downright earnest, forgetting, or not knowing, that the Senator is ineligible. The sixth section of the first article of the constitution provides that "no senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased

during such time." As the "emoluments" of the office of chief justice were increased during the last session of congress, neither Mr. Conkling nor any one of his colleagues can be appointed to the supreme bench. The impression is at present widely entertained that Mr. Evarts will receive the appointment.

The recent vote of the House of Commons upon the subject of arbitration and international law must have been a gratifying surprise, even to the promoters of an international peace congress. This vote was upon a motion that, in the opinion of the House, her Majesty's Government should communicate with foreign powers for the purpose of improving international law, and with the view of establishing arbitration as a permanent resort for the settlement of differences between nations, and the motion was carried, notwithstanding the strenuous opposition of Mr. Gladstone. It certainly looks as though "the federation of the world" is not always to be an enthusiast's dream, but that the time is approaching when it will be possible to assemble the great nations of the civilized world in convention for the purpose of establishing a consistent and authoritative system of international law.

Since the Walworth trial the newspapers have been very industriously engaged in discussing the act of the last session, defining the degrees of murder, and, naturally enough, most of them find fault with it. The burden of all their objections to it is, that it practically does away with capital punishment, by providing that the intent to take life must be proved to have been "deliberate and premeditated" in order

to justify a verdict of murder in the first degree. As

a specimen of the logic advanced by these Solons, we quote from the New York Times of Tuesday week: "If A takes B's life, not by accident, he should be visited with the severest punishment known to the law. That was the change which most people desired to see carried out. They did not want to have it laid down that unless you proved that A intended to kill B, he should only be found guilty of murder in the second degree." This sort of stuff will, of course, have its weight with the masses, but one cannot help wondering how the editor of an

nonsense.

influential paper could possibly lapse into such sheer It seems difficult to believe that any intelligent person who at all understands the matter, can doubt that the new murder law, interpreted as it was in the Walworth case, is an additional safeguard to society. There seems to be little room to doubt that

had Walworth been tried under the old law he would have been convicted of no graver offense than manslaughter in the third degree. The difficulty experienced in the last few years in inducing juries to convict of crimes punishable by death, is alone a sufficient justification for the new law.

The last annual report of the committee on Civil Service Expenditures shows that the gross yearly expenses of the judicial system in England is £1,407,000, and the cost above fees received, £599,000; and in Scotland £125,000, or, after deducting receipts, £63,000. The last appropriation for the courts in this State were as follows: For the court of appeals and commission of appeals, $142,000; for the supreme court, $250,600 in all $392,600. This does not include the county courts nor courts of cities, which would at least double the aggregate.

The English judicature bill appears to have reached a crisis. It seems to have been all along pretty generally conceded that more equity judges were needed than were provided for in the bill, and the attorney-general, in his speech on the second reading in the Commons, declared that the government did not mean to haggle about money, but would consent to an increase of the judges if it appeared to be necessary. Now, however, the government seems to have taken a "back track," by proposing an amendment which diminishes the numerical strength of the court instead of increasing it. The present judicial establishment, so far as judges of first instance are concerned, is eighteen common-law judges, four chancery judges, one divorce judge and one admiralty judge-in all twenty-four. The bill, as it now stands, proposes to reduce this number to twenty-two. The government now proposes to reduce this number by striking out one judge. The Saturday Review alleges that if the government persists in its course it will prove fatal to the hope of

legislation on the matter during the present session.

In Commonwealth v. Whitcomb, 107 Mass. 486, it was decided that under a statute providing that whoever "designedly by a false pretense, ** and with intent to defraud, obtain from another person any property," shall be punished. An indictment will lie against one falsely pretending to be a minister, and who has thereby obtained money as a charity. A contrary doctrine was held in People v. Clough, 17 Wend. 351, but only because the preamble to the statute was thought to refer only to trade and credit.