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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.