no man in this country ever possessed judicial genius superior to his, or originality more marked and perfect. Taney must have been inferior to him in this respect, but still eminently entitled to` a fair reputation for originality.

There would have been at least a plausible justification for Taney's contenting himself with servilely following the judicial oracles of Marshall. A man lacking in independence, or in original resources, would have yielded to the temptation. But we can discern in no period of his life any traces of servility, or undue yielding to his predecessor. He followed in his system, because, by political opinion, he believed in it not because it was Marshall's. He might have acquired temporary credit for originality by overturning that system, instead of sustaining it; but it would have been at the expense of his country's interests, and his own permanent reputation. To hold fast to the true and the just, is a higher evidence of originality than is capricious change or hazardous novelty.

It has been previously remarked that the poet is born, and the orator made; and some who had no real appreciation of legal mind, have thought that the lawyer depended upon the faculty of memory, rather than of reason. In truth, all these, the poet, the orator, and the lawyer must be born, not made, if they exist at all. The poet must be born with the faculty of imagination, the orator with the faculty of persuasion, the lawyer with the logical faculty.

The bar of Baltimore aptly, and with careful discrimination, described the mental endowments and moral elevation of the chief-justice, when they resolved:

"To a grasp and comprehensiveness of intellect, which no problem of jurisprudence could embarrass, he united an acuteness and vigor of analysis, and a broad sagacity in the appreciation and application of principles, which rose to the level of genius. Though he had studied his profession until its science was ingrained in his mind, he was attracted to that learning only which illustrates right; and had a wholesome contempt for the subtleties which prevent it."

Jurisprudence, in its best sense, consists of the principles of natural justice and natural freedom applied to the relations of men and the affairs of states. As an artificial system of arbitrary rules and technical dogmas, it is a narrow study; and Burke was beyond cavil no more than just when he pronounced that it narrowed and belittled the understanding. As courts and judges make the law, a magistrate can be very respectable without a particle of original thought

He may

draw upon

his

or any brilliancy of intellect. memory, or trust to the conclusions of the digest. He may administer law for years without advancing it, or even applying a principle, in any correct sense of that term. Precedents are multiplied until it is almost impossible to say what is law, in the conflict of cases. Under such system, he is esteemed the greatest lawyer, who knows the cases most thoroughly. Beyond, and very much elevated above, this mere repository of the opinions of others, is that legal philosopher, who, thoroughly grounded in principles, relies upon the working of a comprehensive understanding, and a quick common sense, for their application to the specific facts of cases as they are presented. This was the judicial distinction of Taney.

In so complicated a system as English and American jurisprudence, there will always be danger that mere legal learning will be estimated beyond its intrinsic value. Still authority has a value, negative as well as an affirmative; a great judge must know what has been decided or written, in order to repudiate and disown, if not to follow and endorse it. Neither Taney nor Marshall was a great legal reader; and yet they were learned men, in the best sense of that term. Judged exclusively by the extent of their libraries, they must be pronounced vastly inferior to such men as Cowen, Story, and Campbell. Their learning consisted in a thorough comprehension and accurate knowledge of legal principles. Their genius consisted in the philosophical application of those principles in judicial administration.

The moral attributes of a chief-justice are of hardly less weight in the estimate of great judicial superiority, than native ability and acquirements. Those essential qualities are independence, honesty, and courage. In the time of Jackson, Taney never exhibited a particle of what can, with any correctness of expression, be denominated servility. And while upon the bench, he was servile neither to the executive power, nor to the slave power, so called. He held the scales of legal and constitutional justice with rigid impartiality.

Did he lend his great office to politics, or at any time give up to party what belonged to his country and mankind? The politician, who can see in the government of his country and the constitution of his fathers, but one interest and but one class, will say, "Yes, he once did; and that, too, at a time when he might have struck a blow that would

have resounded through ages for the liberties of this land." To those who think so, no hasty words of ours will alter that conviction; but time, which brings all things aright, and decides, by a law more reliable than party bias, the motives of men, will sufficiently vindicate Chief-Justice Taney's opinion and conduct in the case of Scott. It was a legal, and not a political, opinion; and as such only it is to be judged. It may have been an erroneous opinion; all we care to insist upon is that it was an honest one.

The fearful events through which we are now passing, are breaking up the great deep, and perhaps upheaving the foundations of the Constitution itself, so far as slavery is concerned. What will be the future opinions of the country as to the legal or constitutional basis on which slavery has hitherto rested, we need not attempt to predict. They may be very different from those now generally received. Or it may appear, as many are now coming to believe, that it never had any legal or constitutional basis at all. Nor are we disposed to interpose any objections to such a conclusion. In any event, this much may be said in defence of Taney's opinion in the case of Dred Scott: that he held -only as did almost everybody else that slavery had somehow or other a constitutional and legal existence in this country; and that however he may have differed from others, or even from the great majority, as to the particular legal foundation on which slavery stood, it has as yet been found impossible for any one to suggest any other ground that is intrinsically more reasonable or plausible than that given by Taney. Those, therefore, who persist in condemning that opinion, will probably some time find themselves driven to the necessity of adopting, as the only alternative, the idea that slavery has no legal existence at all. It certainly cannot with reason be suspected of Taney, either that he did not know, or was unwilling to put forth, the strongest grounds, in support of his conclusion, that the nature of the case admitted. If that ground be a weak one, so much the better for liberty; but Taney could hardly be expected either to make, or to announce, so revolutionary a discovery as the one we have suggested as the only reasonable alternative to his own opinion.

The grounds on which Taney held that persons of African descent could have no right under the Constitution, were these that at the time the Constitution was adopted, that race was treated as property, and that it was the general senti

ment of that time "that a black man had no rights which a white man was bound to respect." He does not himself, as so many have erroneously supposed, justify that sentiment; on the contrary he deplores it. But he says that it was, nevertheless, a fact; and he thence concludes that the Constitution must be interpreted in conformity with that fact. He candidly confesses that the same language as that used in the Constitution, would not, if used at this day, authorize any inference against the citizenship of the African race. This confession does honor to his frankness and courage; and the confession itself may one day be worth more than many battles for the rights of an oppressed people. Let it be treasured for what it is, and what it may yet do, rather than condemned for what it is not.

Instead of severely censuring Taney for that opinion, he ought rather to be applauded at least for this: that notwithstanding his ideas as to the right of property in man, he never adopted the Southern theory of state rights, as a means of protecting that property; on the contrary, he held to the ideas of Jay, Marshall, Story, Kent, and Webster, that our national government derived its powers by direct grant of the people themselves, as individuals, and that it was not a simple confederacy of sovereign states, each at liberty to judge for itself when the compact of union was violated, and to withdraw at its pleasure or discretion, or even on its own views of necessity.

His opinion in the Dred Scott case implies, too, that slavery can be imposed only upon a single race, those having African blood, and that that race can be enslaved, not because the state governments so choose, but only because, as he thinks, the Constitution itself excepts them from its protection and benefits. But he holds that all other persons are citizens of the United States, and that, as such, they cannot be enslaved by the states. Whether his opinion as to the African race be correct or not, it is, we repeat, to his credit, that he never adopted that absurd theory of states rights, which, if true, would authorize a state to enslave whomsoever it pleased, black or white, without reference to the Constitution of the United States.

Taney's opinion as to the citizenship of the African race, may be erroneous. It is, nevertheless, as a legal opinion, a whole, far more logical and consistent, and more favorable to liberty even, than the dissenting opinion of Mr. Justice Curtis, which was so highly lauded at the North, in

contrast with Taney's; and which was to the effect that it was for each state to determine who might, and who might not, be a citizen of the United States, within her limits, and consequently who might, and who might not, be a slave.

Neither any quasi political conduct of the late chiefjustice, nor any political bearings which his judicial opinions may have had, ought ever to have brought any stigma upon his reputation. his reputation. The time has elapsed when a partisan press should overabuse, or the language of eulogy should overpraise him. He had decided political opinions during the whole of his public life. He was a Federalist in early life; he was a Jackson Democrat afterwards. He was never a states rights Democrat, or a tool of Southern public men.

Chief-Justice Taney's rank, as a judicial statesman, is a topic demanding some consideration. The mutual dependence of law and statesmanship, and the reciprocal relation of the jurist and statesman, in this country, are quite obvious. The political and the judicial statesman require a different order of faculties. Active executive qualities, a nice balance of the practical and the theoretical, a power of adapting himself to men, of judging them and using them, are as essential to the political statesman, as are wisdom in counsel, fertility in resources, comprehension in plans, and originality in projects. To the judicial statesman these are less requisite; and in their place other qualities are indispensable. Independence, honesty, impartiality, freedom from party bias, patriotic purpose, and clear, systematic ideas are essential to the character of the latter.

The relation of the chief-justice of the national court to American statesmanship, is intimate. His business, as causes come before him, is to fix and settle the relations of the states and Federal government, to apply European public law to American institutions, to interpret, test, and try the legislation of Congress, and expound the national charter, so as to guard the rights of the people against congressional and executive encroachments.

Several facts must be remembered in any candid estimate of Chief-Justice Taney as a judicial statesman. Previous to his introduction to this function, he had never held judicial station, or been much in public political life. He had held public offices, but they were legal rather than political. He had been State and Federal Attorney-General, and for a very short time at the head of the fiscal depart