While the court declared that political questions are to be decided by the political department of the government, it pointed out the three recognized methods of changing a form of government as (1) the change by revolution, (2) by the method pointed out in the Constitution itself, (3) and by a law authorizing the change in a form of government.

Whatever might be the opinion of individual members of the court, the Constitution * empowers Congress to decide what government is the established one in the State.

"The high power," said Taney, "has been conferred on this court of passing judgment on the acts of the State sovereignties, and upon the legislative and executive branches of the Federal government, and of determining whether they are beyond the limits of power marked out for them respectively by the Constitution of the United States. We pass not into discussions that belong to other forums."

The political department has always determined whether the proposed constitution or amendment was ratified or not by the people of the State, or of the United States, and the judicial power has followed its decision.

In 1851, the case of the Genesee Chief called forth from Taney probably the most liberal decision of his judicial career. By the law of England, maritime jurisdiction extended only over tide water. In 1825, our Supreme Court had decided that the maritime jurisdiction of the Federal courts, was also limited by the ebb and flow of the tide. However, Congress in *Art. iv., sec. 4.

1845 passed an act extending the admiralty jurisdiction over the lakes and connecting navigable waters of the nation. The question then arose, was that Act authorized by the Constitution. If not, then the Federal courts had no jurisdiction over a suit for damages against the Genesee Chief, and the Act of Congress attempting to give the Federal courts admiralty jurisdiction over Lake Ontario and our great rivers was a nullity. "It is evident," said the Chief Justice, "that a definition that would at this day limit public rivers in this country to tide water rivers is inadmissible. We have thousands of miles of public navigable waters in which there is no tide. And certainly there can be no reason for admiralty power over a public tide-water which does not apply with equal force to any other public water used for commercial purposes and foreign trade. The decision limiting admiralty jurisdiction to tide water was founded in error and it is not our duty to perpetuate it."

On the 6th of March, 1857, Chief Justice Taney gave the decision of the Supreme Court in the case of Scott * against Sanford, known as the Dred Scott case. That case is so intimately connected with the last three amendments to the Constitution, and formed so marked an epoch in the history of that court that it must be noticed.

66

† The great question involved in the case was whether it be competent for the Congress of the United States, directly or indirectly, to exclude slavery from the territories of the Union. The Supreme Court

19 Howard.

Tyler's Life of Taney, p. 360.

decided that it is not. Six of the eight judges assenting: McLean and Curtis dissented.

The opinion of the court is based upon the doctrine that when the American colonies were settled, property in African negroes was recognized by the public law of Europe, and that trade in negros as merchandise was regulated by public treaties and by municipal legislation.

England, in 1713, obtained by the treaty of Utrecht the almost entire control of the trade of supplying the American colonies with slaves. The people of England, dissatisfied with the monopoly by a few royal favorites of such a profitable trade, forced Parliament to open it to all the subjects of Britain. The common law of England, or rather the navigation act, placed negroes on the same footing as property, and included them with rum, goods and merchandise. That States of Europe in this phase of public law and national practice introduced slavery into their American colonies, and established property in negroes as recognized by public law, just as slavery on the continent of Europe had always been recognized by the law of nations. That when the Constitution of the United States was formed, negroes were just as much property as any other goods and merchandise.

The Constitution, recognizing and protecting prophow gerty in slaves, the master had as much right to take his slaves as any other property, into the common territory of the United States held by the government in trust for all citizens; and that as the Missouri Compromise was in violation of this right, it was null and

void. And that negroes, being considered by the Constitution as only property, could not, when freed by their masters, thereby become citizens of the United States.

Thus you can see the grounds upon which Taney

held that the negro had no rights which the white man not in so many

was bound to respect. It was not a personal opinion ods.

of the judge, but a statement of how the law stood, and it remained for a great civil war and an amended Constitution to change the law.

The Dred Scott decision added fuel to the antislavery agitation. The State of Wisconsin openly defied the Supreme Court in its attempt to enforce the punishment of Sherman M. Booth, who had been convicted of violating the fugitive slave law of 1850. The Supreme court of Wisconsin on a writ of Habeas corpus liberated Booth when imprisoned by a Federal court, and the legislature of that State passed resolutions denying that the United States courts have the exclusive right to determine questions of Federal law.*

Two years after the case of Booth, President Lincoln's first inaugural address (1861) indicated the sentiment that prevailed with the dominant party toward the Supreme Court.

"The candid citizen must confess," said Mr. Lincoln, "that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court the instant they are made in ordinary litigation between parties in personal actions, the people will have *Page 398 of Tyler's Life of Taney.

ceased to be their own rulers, having to that extent / practically resigned their government into the hands

of that eminent tribunal."

With the war, prevailed the maxim that the safety of the people is the highest law, and the venerable Chief Justice files his opinion in the Merryman case. A general in the army had caused the arrest of John Merryman and had him confined in Fort McHenry. Taney issued a writ of Habeas corpus to examine into the commitment of Merryman. The commander of the fort refused to deliver up his prisoner, answering that he had been authorized by President Lincoln to suspend the writ of Habeas corpus.

The judge files his opinion to the effect that none but Congress can judge that the emergency has arisen when the public safety demands the suspension of that sacred writ; that if such military usurpation is legal, then every citizen holds his life, liberty and property at the will and pleasure of the army officer in whose military district he may chance to be found.

Since then, the courts have held that even when the writs of Habeas corpus is suspended, it issues and the court decides whether the defendant is entitled to the benefit of the writ, when the prisoner has been brought into court.

Little interest need be taken in judicial proceedings during a great civil war, for inter arma legfs silent. With the return of peace new interests sprung up and new questions for adjudication.