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The decisions of the Supreme Court from 1835 to 1864, upon constitutional questions, are numerous and important. Although Chief Justice Taney's opinion was often one of dissent, probably the best way to trace the action of the court, would be to examine his opinions as a judge.

Appointed by President Jackson, of whom he was a warm political and personal friend, Taney had a vigorous, independent mind, stored with legal and political knowledge, but with little else. On account of his eminence as a lawyer and his devotion to duty as be saw it, his opinions as a judge will always be entitled to consideration.

When an impartial history of his life shall have been written, it may be seen that his faults were few, but that misfortune had placed him in opposition to an overwhelming popular sentiment. Descended from slave-holding ancestors, he had little sympathy with the Abolitionists, and for his opinions upon questions that involved the rights of the negro, he has been most bitterly maligned. A devout Roman Catholic in religion, in his private life, he was kind, loving and happy, an illustrious example of a zealous, pious A Federalist, with Republican friends and associates, few of his opinions favored liberal construction, and his influence on the court tended toward national disintegration. *


One of the earlier cases that came before Chief Justice Taney, where constitutional questions were involved, was the suit of Rhode Island against Massachusetts for the recovery of political sovereignty and jurisdiction over about one hundred square miles of territory, with about five thousand inhabitants. Massachusetts moved to dismiss the bill in equity against her, because (1) the Supreme Court had not jurisdiction of the case, (2) the defendant was a sovereign State, and (3) because by a judicial decree sovereignty and jurisdiction cannot be recovered. The case was ten years in court, and in 1846 the court held that Rhode Island did not prove a mistake in the boundary line, and the rightful possession of Massachusetts for two centuries, could not now be disturbed. During the whole controversy Taney held that the Supreme Court had no jurisdiction over questions involving political rights—that being a subject for the control of Congress. The decision was of great importance to the majority in Congress in the recent days of Reconstruction.

The corporation cases † established the principle that the corporations of one State, created by statute, within its territorial limits, are permitted by the comity of nations to make contracts in the other States and sue in their courts. “The States," said * Tyler's Life of Taney. † Bank of Augusta vs. Earle, 1839.


Taney, “have adopted toward each other the laws of comity in their fullest extent.” In 1847, * this principle shaped Taney's decision when he held that a discharge of a debtor by a State insolvent law, was a discharge of a debt due to a citizen of another State, although Marshall had decided otherwise.

What the comity of nations effected, in Taney's opinion, now is accomplished by the United States bankrupt law, which aims at a just and equitable discharge of the unfortunate debtor.

In 1841, came before the Supreme Court the case of Priggt against the State of Pennsylvania, in which arose the question of the validity of State laws prohibiting the taking and carrying away of a negro or mulatto by force and violence out of the State. The agitation that resulted in the abolition of slavery had begun, and the legality of the State law which Prigg had violated was opposed by the friends of slavery and supported by eloquent counsel in behalf of the Commonwealth. Mr. Justice Story denied the validity of the State law on the ground that the Constitution places the remedy for fugitives from labor exclusively in Congress. Taney went further and held that the States had power also to pass laws to aid in capturing fugitives,

Here lies a fundamental principle of construction with Taney, and it has prevailed. He held that the States could aid the Federal government. It is now settled that where State legislation is not in conflict with Federal laws on the same subject nor inconsistent with Federal legislation, the States can pass laws on subjects of national legislation. The States are sovereign in every thing that has not been taken away from them.

* Cook vs. Moffat. † Prigg vs. Penna., 16 Peters, 539.

In 1840, came before the Supreme Court the Habeas corpus case known as Holmes vs. Jennison. * Governor Jennison, of Vermont, at the instance of the Canadian government, commanded a sheriff to arrest Holmes and take him to Canada. Holmes sued out a writ of Habeas corpus from the Supreme Court of Vermont, which held that the Governor had authority to issue the warrant. After an argument that went into the questions of foreign intercourse, State and national jurisdiction, the majority of the court held that the Supreme Court of Vermont had jurisdiction.

Taney, † however, held that foreign intercourse belongs by express grant to the Federal government and that the States have no jurisdiction in foreign affairs.

In January, 1847, there came from Massachusetts, Rhode Island and New Hampshire, what were known as the license cases, I in which it was decided that the States can regulate or prohibit the retail of wines and spirits which Congress has authorized to be imported from foreign countries. “But,” says Taney, “the States could not obstruct the importation or prohibit the sale in the original cask in the hands of the importer. When an import becomes mixed with the general property of the State, it is beyond the power of Congress in regulating commerce, and within the

* (Story), McLean, Wayne, Taney.
+ 14 Peters.
* 5 Howard.

1 a

taxing power of the State. Thus the courts determine where Federal jurisdiction ends and State begins.

In the license cases, and also the passenger cases * of 135. 1849, Taney applied his theory of construction, that our political system is a co-operative one on the part of the States in aid of the Federal government.

The passenger cases were argued several times for the benefit of the court, which finally by a majority, held that the power to regulate commerce is exclusively vested in Congress, and that a tax upon passengers arriving in a port, by the State in which they arrive, is a regulation of commerce-both of which propositions Taney denied.

The passenger cases occupy 290 pages in the seventh of Howard's Reports, and contain a thorough discussion of the powers of Congress and the rights of the State in regard to commerce. "A tax upon passengers arriving in vessels," said Mr. Justice Grier, "prohibits the emigration of foreigners to other States, taxes commerce and is not a police regulation of the State ;" and thus New York and Massachusetts had to submit to the superior power of Congress.

In 1849, came before the Supreme Court the case of Luther against Borden,t in which an attempt was made to have that court decide which one of the two rival governments in Rhode Island was the legitimate one. Although the case itself was the justification of an ordinary trespass, yet the remote questions involved the great problem of changing a form of government.

* 7 Howard. + 7 Howard.

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