constitute the immediate occasion of the entrance into a new phase of development of the struggle over the slavery question. This was effected solely by the fact that Taney or the supreme court was not satisfied with deciding the case before him, and which was disposed of when it was decided that the circuit court had no jurisdiction.

After that there was no case at law before the court. But, according to the constitution, the courts of the United States are authorized to decide cases at law and not legal questions in general, the authoritative decision of which may, for one reason or another, seem desirable.

How difficult it was to meet this objection to the claim. that Taney's further inferences and amplifications constituted a binding judgment, based as the objection was on principle, appears most clearly from the more than bold manoeuvre Senator Benjamin had recourse to. The supreme court, he said, had denied the jurisdiction only of the circuit court, but not its own jurisdiction, and the question of its own jurisdiction had been answered in the affirmative by all the justices. Benjamin's great reputation as a learned and astute lawyer was well deserved, but this claim was an absurdity pure and simple. This case was one in which the supreme court had not original jurisdiction; it sat as an appellate court, and the constitutional grounds of want of jurisdiction applied equally to both courts. The judges were no more unanimous on the question of jurisdiction than on most other questions. Benjamin's claim was correct only to this extent, that all the judges claimed jurisdiction in one way or another and in one sense or another; but some of them believed, for various reasons, that the case should not be decided on the basis of the formal, legal question, whether Dred Scott had a standing in the federal courts, 1 Congr. Globe, 1st Sess. 35th Congr., pp. 1069, 1070.

while the others were of the opinion that, notwithstanding the decision of this question in the negative, they had power to decide further questions; but no judge made the preposterous claim that the jurisdiction denied the circuit court belonged to the supreme court.

There is no reason why we should examine the views of each judge on the question of jurisdiction. If anything besides the want of jurisdiction of the circuit court was "decided" in the Dred Scott case, it is contained in Taney's opinion, and hence only the reasons he assigns for going beyond this decision can be considered authoritative, i. e., the decision of the court.

Taney was of opinion that the claim that, with the decision of the want of jurisdiction of the inferior court, the power of the supreme court to render any legally binding decisions in the case before them was exhausted, was based on the error that a fundamental principle which has force only as regards the judgments of state courts could be extended to the judgments of United States courts; when the judgment of a United States circuit court was brought, by writ of error, before the supreme court, the whole record came before the latter for examination and decision, and if the sum in litigation was large enough, it was not only its right but its duty to examine the whole case as presented by the record, and, if the circuit court had fallen into any material error, to reverse the judgment and remand the case; and, added he, “it is the daily practice of this court, and of all appellate courts where they reverse the judgment of an inferior court for error, to correct by its opinions whatever errors may appear on the record material to the case; and they have always held it to be their duty to do so where the silence of the court might lead to misconstruction or

future controversy and the point has been relied on by either side and argued before the court."

It could not be surprising that laymen allowed themselves to be overawed by the statement made with so much positiveness by the aged chief justice concerning the practice of all appellate courts; but every jurist could not but perceive, at the first glance, the bold sophistry by which Taney endeavored to explain away the usurpation of the supreme court. In the present case no "misconstructions" or "further controversies" were possible, because it was not remanded to the inferior court to be again examined and decided, but was simply adjudged dismissed for want of jurisdiction, i. e., the essential, actual condition precedent to the practice of appellate courts of which Taney spoke was wanting. That what Taney said of that practice was, in itself, correct, was a matter of utter indifference, as it did not apply here. Taney himself subsequently said that the decision of the other questions had no significance, so far as Dred Scott and Sandford were concerned. But, we are further told, that could not justify the "sanctioning" of an evident error in the judgment of the inferior court, if evil conse quences, in other cases, might follow. The preceding admission lost nothing of its importance by this argument, but it must have opened the eyes of even thinking laymen to the previous sophism. Common sense was a higher forum than the supreme court of the United States, and it could not be convinced that the supreme court of the United States could recognize as correct all the rulings of an inferior court when it entered into no examination of those rulings, because its decision was to the effect that the inferior court should have concerned itself no further with the case than to declare its want of jurisdiction.

The reason why the majority of the judges, after the rendering of the judgment in the case at law, undertook to decide all other kinds of questions, was doubtless to prevent further controversy, but controversy in the ter ritories and about the territories, in congress, i. e., Taney's learned talk was only an unhappy effort to cover the nakedness of Wayne's honest admission that the court had allowed itself to be determined by political considerations, with a fig-leaf of bad jurisprudence, the outgrowth of bad logic. Hence the reasoning by which the further principles were supported was political, although clothed in rich legal raiment. The constitution speaks only of the territory that belonged to the United States at the time of its adoption, and speaks of it only as property in the quality of an object of value, and does not grant congress, in the only clause in which it speaks of it, general and unlimited legislative power in relation to it, a power which would be incompatible with the fundamental principles of the constitution; still less can such power over the regious subsequently acquired be inferred from that clause; they were acquired for the people of the individual states, and the citizens of these states have, therefore, an equal right to them and in them; the constitution makes no difference between slaves and other property, but distinctly and expressly recognizes slaves as property; hence congress cannot prohibit the bringing of slave property into the territories, and, therefore, the Missouri Compromise, which prohibits slavery in the territories north of thirty-six degrees, thirty minutes, is null and void, because in conflict with the constitution-such are the principal propositions to which Taney's further reasoning leads. The refutation of these propositions, in detail, is contained in the history of slavery in the preceding volumes of this work, and hence cannot be here

undertaken anew, nor is it necessary it should be. We would only say a few words on two points.

The territorial acquisitions were not made for the people of the individual states, but for the United States, as is expressly stated in all the treaties relating thereto. Taney's argument was an intellectual sword-player's trick, by which he made what he undertook to prove the presupposition of his demonstration. Precisely in the constitutional relation of the federal government to the territorial possessions of the Union had the national phase of the idea of the federal state found the most pregnant expression, and Taney took the principle of the confederated state as the starting-point of the proof of the proposition which was only the application of that principle to the slavery question in the territories.

Still clearer was the utter untenableness of the second claim, without which it was impossible to reach the concluding proposition, which was the sole object of the entire second part of the "decision." The constitution made a difference between slaves and other property, and this by the very clause relating to the delivery of fugitive slaves, to which Taney appealed. Why did it not also provide that horses, oxen and hogs which had strayed into another state should be delivered to the owner? Plainly because that was self-evident. In the case of slaves, however, an express provision was necessary, precisely because the United States as such did not look upon them as property, and this, not what Taney claimed, was "expressly " provided for in the text of the constitution which recites that persons escaping from a state who by the laws thereof were held to service or labor should be delivered up on claim. The constitution, therefore, only provided that the laws of the several states on slavery should be regarded as controlling by all