Spooner on Dred Scott

When abolitionist philosopher Lysander Spooner died in 1887 his friend and sometimes-editor Benjamin Tucker penned an extended obituary essay on his life entitled “Our Nestor Taken From Us.” The essay was largely biographical, but it also revealed Spooner’s authorship of several anonymous political essays over the previous decades, including in Tucker’s own magazine Liberty. Most of these works were quickly identified by the titles and other indicators Tucker provided. Others have proven more difficult to track down, as with the following example:

“At times he wrote parts of works which appeared under others’ names. For instance, the long argument against prohibition entitled “Vices Are Not Crimes” embodied in Dio Lewis’s book on the temperance question was Mr. Spooner’s work, and so was part of George W. Searle’s article on “Chief Justice Taney” in the “National Quarterly Review” for April, 1865.”

This reference to an article about Chief Justice Roger B. Taney, allegedly published the year after his death, is deceivingly specific. The National Quarterly Review certainly existed, and George W. Searle was an old friend of Spooner from their abolitionist days. But there is no article about Taney from an April 1865 issue, and no article of any sort bearing Searle’s name in this publication.

In truth, Tucker got the date and publication details wrong as a highly likely candidate for this article exists. An extended and anonymous 21-page obituary of Taney appeared in the December 1864 issue of the National Quarterly Review. While it is predominantly biographical in recounting the details of Taney’s life, the article shifts tone at its midpoint, including the sudden adoption of the first person plural “we” in self-referential suggestion that the piece had multiple authors. What follows is a brief but probing legal analysis of the Dred Scott ruling:

“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 sentiment 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, and as 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 landed 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 chief justice, nor any political bearings which his judicial opinions may have had, ought ever to have brought any stigma upon 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.”

The arguments offered in this passage bear resemblance to Spooner’s known work on three counts. First, it echoes the general argument of Spooner’s most famous abolitionist work, The Unconstitutionality of Slavery (1845), by espousing a radical literalist anti-slavery interpretation of the Constitution and suggesting that greater recognition of this reading follows from the abolition of slavery, then underway amidst the referenced and raging Civil War. Second, it adopts a directly parallel critique of the “states rights” doctrine as may be found in Spooner’s Address of the Free Constitutionalists to the People of the United States (1860). Third, it echoes Spooner’s well known and iconoclastic contempt for the strain of political abolitionism that was presently ascendant. Spooner firmly believed this breed of thinking compromised intellectual principles for political expedience and ulterior political motives, and denounced it as lacking the honesty of even his own pro-slavery adversaries. A similar denunciation is found here, juxtaposed against respectful criticism extended to the late Chief Justice Taney. In all likelihood, Searle penned the surrounding biographical material and inserted the above-excerpted passage of legal analysis from Spooner.

Yet a stronger piece of evidence also conclusively establishes this piece as the Searle-Spooner article mentioned by Tucker. Though it was anonymously printed in the National Quarterly Review, a contemporary newspaper took notice of the article’s innovative legal analysis and endeavored to locate its author. As the Portland, Maine Eastern Argus of December 29, 1864 illustrates, the above-quoted article is indeed the one listed in Tucker’s obituary of Spooner: