eleventh hour appointment of Marshall, an open political enemy of President Jefferson, served to intensify the feeling. Jefferson and his followers were, to express it moderately, irritated by the court's decision in the Marbury case. The political party in power, the Republican, since termed Democrat-was opposed unequivocally to undue centralization of power in the Federal Government. The Federalists to which Adams and Marshall belonged, believed in a strong judiciary with the unquestioned right to interpret the Constitution as the supreme law of the land. Jefferson was then president; he and his government became alarmed at what they regarded as the arrogance and unwarrantable assumption of superiority of the Supreme Court. The legis lature had hitherto been regarded as paramount but here was the court declaring in the plainest terms that the Constitution was paramount. Marshall had figuratively thrown down the gauntlet to his political enemies. More than that he had with equal clearness implied that Jefferson had without warrant of law or authority withheld a commission, the one rightfully belonging to Marbury. Here was a double assault, a two-edged sword held between the legislative and executive and in a position equally to cut into either. The Republicans were both alarmed and angered. There was talk of open opposition and impeachment. The friction actually did culminate in the attempted impeachment of Associate Justice Chase, noticed in an earlier chapter. But the victory remained with Marshall beyond question and it is now recognized that the great jurist's triumph was both personal and national. It placed the Constitution on the pedestal intended for it and as a precedent has served to keep it there to the benefit of posterity.

The political ferment was still further stirred up by the case of Fletcher versus Peck in which Marshall declared an act of the legislature of Georgia repugnant to the Federal Constitution on the same principle that the portion of the Judiciary Act, granting the Supreme Court original jurisdiction, was unconstitutional. Thus it was settled and has remained so that the legislatures of both the nation and

States must recognize the superiority of the Constitution. The same principle arose in the famous Dartmouth College case and others throughout the incumbency of Marshall as chief justice (1801-1835). It was always accepted by his associates that Marshall's peculiar province should have to do with constitutional questions, and it is not too much to say that he, more than any other person, gave the accepted principle on which the Constitution is interpreted as the supreme law of the land, and carried out what, it is now generally understood, were the intentions of the members of the Constitutional Convention of 1787.

Marshall died in 1835. He still holds the record for length of service as chief justice, though not for length of service on the Supreme Court bench. That distinction belongs to the late Justice Field whose term of service covered a period of more than thirty-four years. Of the 1106 opinions handed down by the court during Marshall's term 519 were delivered by the chief justice; the balance of 587 divided among the fifteen judges who were his associates for thirty-four years.1

Marshall was succeeded by Roger B. Taney of Maryland, an appointee of President Andrew Jackson. The new chief justice's commission was dated two days before his fifty-ninth birthday, March 15, 1836. Taney was a man of brilliant parts and a jurist well qualified to sustain the lofty traditions of his predecessor's term of office. He has thus been described:

In knowledge of technical details in all departments of legal learning, in the mastery of principles derived from constant and varied occupation in the argument of causes in courts of inferior and superior jurisdiction, both State and national, he excelled every one of his predecessors. He ascended the bench at a much later period in life than they, and had long before his promotion attained the rank of a veteran leader of the bar. . . . Delicate in health, but vehement in his feelings, and passionate in temper, he expressed himself at times with extraordinary vigor, and acted with promptitude and decision. He was a man of the highest integrity and of great simplicity and purity of character. . . . His judicial style was admirable, lucid and logical, and, like his arguments, displayed a thorough knowledge

1 Carson, History of Supreme Court, Vol. I, p. 286 (note).

...

of the intricacies of pleading and niceties of practice, as well as a thorough comprehension of underlying principles. . . . Upon his fair record but one blot appears. The "damned spot" of the Dred Scott decision will not "out," and though other illustrious names must share in the infamy of that fatal blunder, yet the Chief Justice, by virtue of his eminence, must carry the blood-stain on his ermine to eternity.1

There are doubtless many who will not agree that the decision in the Dred Scott case was a "fatal blunder," much less that there was any "infamy" attached to it. In recent years a calm consideration of this famous decision has ameliorated the bitterness it engendered, and permitted a more impartial study of it. It came at a time when passions were aflame over the slavery question; when the men of the South and the men of the North were prepared to go to war if necessary to settle that very question. The Dred Scott decision exasperated the latter and emboldened the former to more determined resistance to what it regarded as an invasion of its rights. The decision itself undoubtedly precipitated the conflict which was, nevertheless, inevitable.

Dred Scott versus Sandford was the title of the case. Scott was a slave belonging to Dr. Emerson, a surgeon in the United States Army. In 1834, Dr. Emerson went from Missouri to the military post at Rock Island, Illinois, and took Scott with him. He remained there until the spring of 1836 when he and Scott went to Fort Snelling in what was then the Territory of Upper Louisiana. Scott was taken back to Missouri in 1838 where, subsequently, he, his wife and two children were sold by Dr. Emerson to John F. A. Sandford, the defendant. It appears that Sandford was not over gentle with Scott and his family, and the negro determined to make a fight in the courts for his freedom. The main issue was whether Scott's residence in Illinois made him a free man since that State's laws forbade slavery within its boundaries. The Supreme Court of Missouri held that such residence did not grant freedom. The case next came up in the Federal Circuit Court in Missouri and a similar result was reached, when it was carried to the

1 Carson, History of Supreme Court, Vol. I, p. 286 (note).

Supreme Court of the United States on a writ of error, and was argued before that tribunal at the December term, 1855.

The majority opinion of the highest court was written by Chief Justice Taney. Associate Justices McLean and Curtis dissented. The suit was dismissed for want of jurisdiction on the ground that Scott was not a citizen within the meaning of the Constitution. The court held in effect that a slave was property which could be taken by its owner anywhere at will and that any act of Congress interfering with this right is unconstitutional. The following paragraph from the chief justice's opinion may well be taken at this distance of time as justifying the decision of the court:

No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty.

In fact the Dred Scott decision was one of those cases in which the court's interpretation of the Constitution clashed violently with public opinion. In times of great national crises the same thing may recur. Must the Supreme Court bow to public opinion? or must it proceed as though public opinion did not exist? If it does the first, it will be doing what the Constitution did not intend it to do, and consequently disregard the very fundamental laws of

the land which it is sworn to interpret and that only. Public opinion does not and cannot exist as a factor in a Federal Court proceeding.

2

Chief Justice Taney died on the twelfth of October, 1864 at the advanced age of eighty-seven. He was succeeded by Salmon P. Chase, of Ohio, who had been Lincoln's Secretary of Treasury. Chief Justice Chase presided at the impeachment trial of President Johnson before the United States Senate. The cases, most interesting perhaps in the retrospective, which came before the court during Chase's incumbency were those arising out of the position of the seceded states in the reunited nation. The question of reconstruction which assumed so important an aspect between the close of the Civil War and the year 1870 first came up as early as 1862 when Admiral Farragut captured New Orleans. Even then there was a very large loyal element in Louisiana.1 A military governor was appointed by Lincoln and an election was called for members of Congress. An enrollment of 60,000 loyal citizens, it is said, existed in that state. Two representatives, Flanders and Hahn, were elected. A warm debate on their admission followed and by a vote of 92 to 44 they were admitted. There is reason to believe that Lincoln viewed with sympathy this action of the House. It is mainly important as precipitating the consideration of reconstruction. A year later the president's first reconstruction message to Congress came up for discussion in the House on a motion that so much of the message as relates to the duty of the United States to guarantee a republican form of government to the states in which the recognized governments had been subverted, be referred to a committee of nine to draft proper bills. This led to the passage of the first reconstruction bill authorizing the president to appoint a provisional governor in each of the rebellious states until a civil government could be recognized by Washington. The bill did not reach the president until the eleventh hour of adjournment and therefore did not get the executive sanction. Lincoln, however, promptly issued

1 American Politics, Cooper and Fenton.

2 Ibid.