It would not have been so pitiable had the search been simply to find men of business ability and integrity for the positions; but that was not the problem. How could the interest of the Democratic party in this State or that district best be promoted? What could be done with the patronage in the way of preserving the political life of this Northern senator or that Northern representative? These were the questions put to the President for solution. In a short time, Buchanan, who was the very picture of health when he left Wheatland, looked haggard and worn out, largely on account of the pressure from the hungry horde of office-seekers.'

We have seen in the course of this work many attempts of the national legislature and the executive to settle the slavery question. We have now to consider a grave attempt in the same line by the United States Supreme Court. The reverence for this unique and most powerful judicial tribunal of the world was profound. It is possible that from the time of the decision of the Dartmouth College case to the death of Chief Justice Marshall, the court held a loftier place in public opinion than in 1857; for Marshall was one of the world's great judges, and he had forcibly impressed his wonderful legal mind upon the country's jurisprudence. At that time De Tocqueville had written: In the hands of the Supreme Court "repose unceasingly the peace, the prosperity, the existence even, of the Union." But in 1857 the reverence for the Supreme Court was greater than now.' In much of the political literature of

1 Buchanan had what was known as the National-Hotel disease, which was the beginning of his physical disability. "The National-Hotel disease, a disorder which, from no cause that we could then discover, had attacked nearly every guest at the house, and from the dire effects of which many never wholly recovered.”—Curtis, vol. ii. p. 188, account of J. B. Henry.

* De la Démocratie en Amérique, vol. i. p. 252. See also Lectures on the English People, Freeman, p. 191, and American Commonwealth, Bryce, chap. xxiv. * 1892.

the day it is regarded almost as a fetich; it was looked upon as something beyond the pale of ordinary human institutions. When men became Supreme Court judges, they were believed to be no longer actuated by the prejudices and passions of common humanity. During the slavery agitation there had been propositions of various kinds to refer disputed questions to this court, on the theory that there a wholly impartial and severely just decision might be had. The Democrats who disagreed about the construction of the Kansas-Nebraska act concurred in the proposal to leave the question to the highest judicial tribunal.

In 1857, the Supreme Court was composed of Chief Justice Taney, Justices Wayne, Daniel, Catron, Campbell, Democrats from the slave States; Grier and Nelson, Democrats, and McLean, a Republican, and Curtis, a Whig, from the free States. From the importance of their personality, two of these judges deserve special notice.

Chief Justice Taney belonged to one of the old Roman Catholic families of Maryland, and was himself a devout adherent of that religion. A good student of law, he devoted much time to history and letters; and the thoughts, words, and style of great writers had for him a powerful charm. He especially loved Shakespeare and Macaulay. He rose to eminence at the Maryland bar; he was an untiring worker, and allowed nothing to distract him from his professional duties and domestic life. Of a passionate nature, he had very decided political opinions. President Jackson appointed him Attorney-General, and he soon became the President's trusted and confidential adviser. When Duane, the Secretary of the Treasury, refused to withdraw the gov ernment deposits from the United States Bank, Jackson removed him and put Taney in his place. Taney understood banking and finance, and, being a man after Jackson's own heart, supported the President unreservedly in his war against the bank. The Senate refused to confirm Taney as Secretary of the Treasury, and Jackson appointed him Justice of the Supreme Court. Chief Justice Marshall, though

disliking the President and his policy, had a good opinion of Taney's legal ability, and made an effort to secure his confirmation; but action on his nomination was indefinitely postponed. In July, 1835, Marshall died, and Jackson appointed Taney Chief Justice. As the political complexion of the Senate had changed, he did not fail of confirmation, although he had for opponents Webster and Clay.

To fill the place of Chief Justice Marshall was a difficult task, and Taney suffered continually by comparison with his great predecessor; yet as the years went on, he gained solid reputation by accurate knowledge of law, clearness of thought, and absolute purity of life. His written opinions are characterized by vigor of style, exemplifying the hours he passed with the masters of our literature.'

Curtis had the rich New England culture. By nature a lawyer, he had received at the Harvard law school, sitting at the feet of Judge Story, the training which those who thirsted for legal knowledge could acquire from the instructions of such a teacher. He was thoroughly read in English history. He owed his appointment as justice to Webster, who, when Secretary of State, recommended him most highly to President Fillmore.' Curtis was an absolutely impartial judge. His reasoning was clear to laymen and a delight to lawyers. Though his style was a model of compression, he never forgot a point nor failed to be perspicuous. His course on the bench was a fine testimonial to the choice of Webster, whom New England lawyers regarded as the master of their art.

In the Dred Scott case the opposing principles of slavery and freedom came sharply into conflict in the judicial opin

1 See Memoir of R. B. Taney, Tyler; Sumner's Jackson.

Fillmore had also formed a very high opinion of Curtis, see correspondence between Fillmore and Webster, Life of Webster, Curtis, vol. ii. p. 531.

See Life and Writings of B. R. Curtis; Life of R. H. Dana, by C. F. Adams, vol. ii.

ions of Taney and Curtis. The negro Dred Scott had several years previously sued for the freedom of himself and family, and the case came up to the Supreme Court in a regular way. The detailed history of the affair has for our purpose no importance; it went through various stages, and many collateral points were involved. While the freedom or slavery of four negroes was at stake, the interest in their fate is completely overshadowed by the importance of the questions to which the suit gave rise. As a matter of fact, Dred Scott, after being remanded to slavery by the Supreme Court, was emancipated by his master;' but he had served as a text for weighty constitutional and political arguments.

Standing out beyond the merits of the case and all other points involved, two questions of vast importance were suggested by the facts. Could a negro whose ancestors had been sold as slaves become a citizen of one of the States of the Union? For if Dred Scott were not a citizen of Missouri, where he had mostly lived, he had no standing in the United States Court.

The second question, Was the Missouri Compromise constitutional? came up in this manner. Dred Scott had been taken by his master, an army surgeon, to Fort Snelling, which was in the northern part of the Louisiana territory, now Minnesota, and had remained there for a period of about two years. In this territory slavery was forever prohibited by the Missouri Compromise, and the counsel for Dred Scott maintained that by virtue of the restriction, residence there conferred freedom on the slave. Thus might arise the question, Was the Missouri Compromise constitutional? and this carried with it the more practical question, Had Congress the power to prohibit slavery in the territories? On the basis of the assertion of this power, the

1 See Seward's speech, United States Senate, March 3d, 1858. By inheritance Dred Scott became the slave of the family of a Massachusetts congressman, who emancipated him, his wife, and daughters. See History of Lincoln, Nicolay and Hay, vol. ii. p. 81, note.

Republican party was builded; and if this power did not inhere in Congress, the Republican party had constitutionally no reason for existence.

The case was first argued in the spring of 1856. Justice Curtis wrote Ticknor, April 8th, the result of the conferences of the judges: "The court will not decide the question of the Missouri-Compromise line-a majority of the judges being of opinion that it is not necessary to do so. (This is confidential.) The one engrossing subject in both houses of Congress, and with all the members, is the presidency; and upon this everything done and omitted, except the most ordinary necessities of the country, depends."'

At the term of court, December, 1856, the case was reargued, and the counsel discussed all the questions involved. Still, the judges decided to view the matter only in its narrow aspect, and in its particular bearing on the status of Dred Scott and his family. To Justice Nelson, of New York, was assigned the duty of writing the opinion of the court. He astutely evaded the determination whether the Missouri Compromise act was constitutional; nor did he consider it necessary to pass upon the citizenship of the negro, but in arguing the case on its merits the decision was reached that Dred Scott was still a slave. Had this been the conclusion of the matter, the Dred Scott case would have excited little interest at the time, and would hardly have demanded more than the briefest notice from the historian.

But there now began a pressure on the Southern judges, who constituted a majority of the court, to decide the weighty constitutional question involved in the case. The unceasing inculcation of Calhoun's doctrine regarding slavery in the territories had now brought Southern Democrats, and among them the five Southern judges, round to that notion. Of course the pressure was adroit and considerate, for the judges were honest men impressed with the dignity of their position. The aim was simply to induce

1 Memoir of B. R. Curtis, vol. i. p. 180.