how a mistaken doubtful, and hesitating exercise of power in the commencement, becomes, by use, a conviction of its correctness

THINK OF THIS AS A SIDE TRIP to the posts on the Dred Scott decision and Louis Boudin's overwhelming evidence that it and not the earlier and innocuous case of Marbury v. Madison was the origin of government by judiciary as wielded by Republican-fascists on the Roberts Court. 

Considering Louis Boudin didn't come to the United States, fleeing Czarist oppression in Russia, until he was seventeen, that he must have learned English as a second language fairly late to expect fluency, his achievement in becoming so learned in not only English composition but in an enormous range of the law and the history of the United States and other countries relevant to his topic is extremely impressive.  I've lived in English my whole life and I couldn't do it.  

His writing about members of the Supreme Court and their proclamations, from the most renowned to those forgotten except to specialists,  is deep and penetrating.   I found his understanding of the personalities of a number of them extremely enlightening, one of the most interest of those the associate justice of both John Marshall and Roger Taney,  Joseph Story is especially revealing.  

Story was a New Englander who personally claimed to hold slavery to be a moral abomination but who became, I think under the influence of Marshall and his slave-holding colleagues, more concerned about legalistic scrupulosity  than in the injustice he could have wielded his own office to fight against.  But such is the law, so often and, especially at the Supreme Court level which more often than not, produces injustice.  Though I think his pride in his knowledge of the ancient lore of English Common Law was Satan's point of entry leading to his self-earned damnation.

In Volume One, in the section leading up to and preparing his argument on the Dred Scott decision creating the judicial-power on behalf of the slave-power, Boudin goes into a explanation of how Joseph Story earned the scorn of those held in slavery and those who opposed it when he cited ancient property law in favor of protecting Black People from abduction into slavery.  That starts in an earlier case, a long discussion of the, I'd imagine, largely forgotten Charles River Bridge case, described here, thus:

Facts of the case

In 1785, the Massachusetts legislature incorporated the Charles River Bridge Company to construct a bridge and collect tolls. In 1828, the legislature established the Warren Bridge Company to build a free bridge nearby. Unsurprisingly, the new bridge deprived the old one of traffic and tolls. The Charles River Bridge Company filed suit, claiming the legislature had defaulted on its initial contract.
Question

Did the legislature enter into an economic contract with the Charles River Bridge Company that was impaired by the second charter in violation of Article I Section 10 of the Constitution?

I think in every case when Louis Boudin made such a side trip he did so to point out to something extremely important about the danger of the modern judicial-power as it is practiced to keep an unjust and even dangerous status-quo for the benefit of the rich and, so, powerful and, in this case, to point out that with the United States' Constitution, a written document which is extremely hard to amend, such a power is far more dangerous than the English Common Law that was Story's specialty and,there's  no doubt, his erudition it it something he was extremely proud of.

In reading Mr. Justice Story's Learned Discourse on the English Common Law with reference to ancient ferries and similar matters, one is overcome by a sense of tragedy.  We do not mean only Mr. Justice Story's personal tragedy in fighting for a lost cause - the cause of the "Old Court" so ably presided over by Chief Justice Marshall, whose banner Mr. Justice Story now tried to hold aloft and save from destruction by the onrushing tide of Jacksonian Democracy.  What we have in mind is the far greater tragedy of seeing perhaps the most learned lawyer who ever sat on the United States Supreme Court stubbornly looking backward in search of the ideas which were to guide him in the interpretation of the United States Constitution - a Constitution that was meant, as Marshall himself repeatedly and so ably said, for the government of many future generations yet to come.

The naivete with which Mr. Justice Story appeals to the authority of the remnants of the feudal law still lingering in the English Common Law as the proper constitutional rule for the government of the United States is indeed tragic.  Again and again he pathetically reverts to the fact that he is placing himself squarely on the rule of law three centuries old - little realizing that the older the rule of law the less serviceable it is likely to be in our times.  For it must be remembered that the rules of law contended for by Mr. Justice Story, are not rules of guaranty or security based on Magna Charta or some similar constitutional document, fancied or authentic, extorted by the English people from unwilling rulers in the course of their struggle for freedom, but the privileges of these rules that had survived this struggle and remained part of the common law as Judge Story understood it.  

"I stand upon the old law;  upon law established more than three centuries ago. . . . I will not consent to shake their title-deeds by any speculative niceties or novelties. . . . "  

Such is the constantly-recurring refrain of his song. . .

. . . If Mr. Justice Story's attitude had prevailed, the result would have been the remnants of feudalism which were being gradually eradicated from the English Common Law in the course of the last few centuries, would have been reincarnated in the American law under the protection of the United States Constitution.  Progress would have been blocked not only by way of legislation, but also by way of judicial adjudication - a line of progress which had been going on in England practically on parallel lines with that of the legislation.  

In thus appealing to rules of law which had prevailed centuries ago, Mr. Justice Story not only overlooked the difference of situation between the United States [and its written Constitution which its rules made extremely difficult to amend even to obtain relief from the most obvious injustice administered under it] and England [without such a written Constitution], but also ignored the progress within England itself, with the aid of a couple of revolutions, had made from feudalism to freedom in the course of the last few centuries.  It is not the Common Law of England as it existed at the time of the American Revolution, of which Blackstone was the chief exponent, to which Judge Story appealed, but to the Common Law as it had been expounded under the absolutism of the Tudors and The Stuarts. 

Joseph Story was on the minority of the Court in that case, in that instance his reactionary scruples and sense of piety didn't rule the day, no doubt the commercial and civic benefits of the new bridge as opposed to the old one made a new kind of justice on a different standard than pious fealty to ancient law a pressing sense for the Court majority.   In his commentary Louis Boudin notes that in so far as it was a matter of winning, whose opinion had the force of law,  the learned Joseph Story was beaten by the mediocre Henry Baldwin mentioned yesterday.  I think the most important part of that commentary is this point by Boudin:

Mr. Justice Story set out on a hunt for precedents favoring the rights of individuals against the public, while Mr. Justice Baldwin was looking for precedents favoring the rights of the public as against individuals.  As is usual in such cases, each found exactly what he wanted.

But, as is the more common practice of the learned "justices" on the Supreme Court in matters of justice for the powerless and poor, especially People of Color and, most of all Black People, the ancient rules were good enough and in a far more important case, Joseph Story's ancient reasoning won the day, though his fellow "justices" probably realized what shifting sand that was to build on in the "New Court" dominated by Jackson's appointees instead of those appointed under the Federalist Party.  I have, by the way, little doubt that Story was given the job of writing the majority opinion exactly because he was supposedly an anti-slavery man, the better to strengthen slavery by.

The major point about Story's reliance on English Common Law from the medieval period comes in such a case in which he voted with the majority and sealed his own infamy for People of Color and the opponents of Slavery in general.

Prigg v. Pennsylvania was the most celebrated slavery case prior to the decision of the Dred Scott Case.  It involved the question of the enforcement of the fugitive slave laws, which touched the heart of the slavery problem more nearly than any other question except that question of the power of Congress to abolish slavery in the territories, which was the subject dealt with in the Dred Scott Case.  And it exhibits more than any other case decided during this period the great passion which the subject of slavery around in those days and the confusion which it wrought in judicial minds.  Edward Prigg, a citizen of the Free State of Maryland, had been indicted in Pennsylvania for kidnapping, it being alleged in the indictment that on the first day of April, 1837, he mad an assault upon Margaret Morgan, a Negro woman and carried her away by force and violence from the State of Pennsylvania to the State of Maryland, with design and intention there to sell and dispose of her as a slave.  The facts of the case were as follows:

Margaret Morgan was claimed to be a fugitive slave, having escaped from the State of Maryland into the State of Pennsylvania.  At the time of the occurrences in question, the question of the apprehension and delivery of fugitive slaves in the State of Pennsylvania was regulated by certain laws, among which were: (1) An ACT PASSED IN March, 1780, entitled "An Act for the Gradual Abolition of Slavery"; (2) an act passed in March, 1788, entitled "An Act to explain and amend 'An Act for the Gradual Abolition of Slavery'"; and (3) an act passed in March, 1826, entitled "An Act to give effect to the provisions of the Constitution of the United States relative to fugitives from labor, for the protection of free people of color, and to prevent kidnapping."  The substance of these laws was that whenever an owner or his agent claimed that a person found within the State of Pennsylvania was an escaped slave, he was to apply to a judge or other magistrate for the issuance of a warrant addressed to the sheriff or constable for the apprehension of the alleged fugitive.  The sheriff or constable arresting the alleged fugitive was bound to bring him without delay before a judge, who was to decide whether or not the person apprehended was actually a fugitive slave, and if found to be such, the judge was to turn him over to the claimant together with a certificate showing the person thus turned over into the claimant's custody to be a fugitive slave.  This certificate was to be his warrant for the removal of the alleged fugitive from the State of Pennsylvania.

Margaret Morgan had concededly  been at one time a slave owned by one Margaret Ashmore, a citizen of Maryland.  She fled from her master and came to Pennsylvania in 1832.  In 1837, Edward Prigg, the agent of Margaret Ashmore, came into Pennsylvania, obtained from a Justice of the Peace a warrant for the apprehension of Margaret Morgan as an alleged fugitive slave, had her arrested by a constable, together with her children, one of whom had been born in the State of Pennsylvania while she resided there, and had them all brought before the same Justice of the Peace who had issued the warrant.  It seems, however, that when the alleged fugitive slave was brought before the Justice of the Peace, the latter refused to proceed further in the matter; whereupon Edward Prigg forcibly carried her off, with her children, into the State of Maryland.  The question involved was, whether the provisions of the law of the State of Pennsylvania were binding upon the owner of the slave and his representatives, so that the slave could be reclaimed only in the ordinary course of due court procedure.  Or, whether the slave onwer had the right to disregard the provisions of the Pennsylvania laws providing for the right of recovery of this particular species of property, and could carry off his slaves whenever and wherever found without regard to the state laws on that subject.

The court held that the state laws were not binding upon the slave owner, and that a slave owner could, therefore, carry off his slave whenever and wherever found, and in any mode he saw fit.  The opinion of the Court was written by Mr. Justice Story, and the anti-slavery people never forgave him for his alleged back-sliding.  Before the decision on Dred Scott the decision in the Prigg Case was the cause of great excitement among the opponents of slavery, and Mr. Justice Story's action in the case was the occasion of much adverse comment, in which his moral character did not entirely escape attack.  This latter question is of no particular interest now, and there can hardly be any doubt that the noted jurist acted according to his lights.  But a reading of his opinion reveals two facts which are interesting in our connection, one shedding light upon Mr. Justice Story's character as a jurist, the other upon the character of the epoch in which this particular opinion was written.  And there can be no doubt that the two combined to produce the decision.  There can be no doubt of the fact that Mr. Justice Story, opposed though he personally was  opposed to slavery, though that, under the present conditions of the country, statesmanship required that the question of the fugitive slaves should not be dependent on the laws of the free states.  And there can also be no doubt of the fact that Mr. Justice Story's notion of the sacredness of property, and his medieval and antiquated notions of the rights of owners in the matter of the recovery of property, contributed largely to overcome his aversion to slavery when he came to pass upon the legal question of the rights of an owner to recapture his fugitive slaves.

All of the judges, with the exception of Judge McLean, agreed with Mr. Justice Story in the conclusions at which  he had arrived, but most of them dissented most emphatically from some of the constitutional doctrines announced by him;  and a perusal of their so-called concurring opinions shows how hopeless was the disagreement among them, how utterly irreconcilable their opinions, and how each man in his own way was affected by the problem of slavery.  It would serve no useful purpose to go into a detailed examination of these opinions here, but some of the passages are of more than passing interest.  One of the, in particular, deserves attention here because it seems to epitomize the entire history of the judicial power.  In the course of a rather lengthy opinion, Mr. Justice Wayne said:

"I had intended to give an account of the beginning and progress of the legislation of the States upon this subject;  but my remarks are already so much extended that I must decline doing so.  It would have shown, perhaps, as much as any other instance, how a mistaken doubtful, and hesitating exercise of power in the commencement, becomes, by use, a conviction of its correctness."

That last point by Wayne is so important a one as to the danger of the Taney created power wielded by the Roberts Court to reimpose the 3/5ths rule by "partisan gerrymander" with the clear purpose of preventing Black People, other People of Color and those white People who can stand in for white abolitionists from voting as well as re-nationalizing Women's bodies by state governments.   If you don't get hung up on mere words and abstractions as Story did and as we are all encouraged to and look, instead at the real meaning of things in terms of the real lives of real PEOPLE, not much was really settled by the Civil War and the Civil Rights struggles of the 1950s-70s.   We have a New Taney Court making sure that progress is reversed.   And when they give some Story-like simulacrum of a reason for it, People are expected to just accept that.   We have an absolute moral obligation not to. 

It also shows what a huge whopper of a lie the whole line of "originalism" and, as dishonest "textualism," are.  And, considering the inflexibility in correction that the United States Constitution is built into it, how dangerous those dishonest poses are.