October 12, 1864: Death of Roger B. Taney

Sunday, October 12, AD 2014

Roger Taney

Death came for Chief Justice Roger B. Taney of the United States Supreme Court 150 years ago.  Nominated as Chief Justice by his friend President Andrew Jackson and had sat on the court for 28 years.  Although he had authored many important decisions, he is remembered today only for one:  Dred Scott.  87 years old at the time of his death, Taney, a slave owner, had mirrored the tragic trajectory of the views of the South in regard to slavery in his own life.  As a young man he regarded slavery as a blot on our national character, as he said in his opening argument in defense of a Methodist minister accused in 1819 of inciting slave insurrections.  He emancipated his own slaves.  However, by the time he authored the Dred Scott decision in 1857 he would write:

It is difficult at this day to realize the state of public opinion in regard to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted; but the public history of every European nation displays it in a manner too plain to be mistaken. They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far unfit that they had no rights which the white man was bound to respect.

Taney thought that the decision in Dred Scott would settle the slavery issue in regard to the territories and remove it from politics.  Instead the decision inflamed public opinion North and South and manifestly helped bring on the Civil War.  Taney lived to see his nation riven by Civil War and an administration in power dedicated to restoring the Union and abolishing slavery, and more than willing to ignore the paper edicts of Taney’s court when necessary.  Old and sick, Taney remained on the bench,  unwilling to have Lincoln name his successor, a living relic of a bygone era.  The best epitaph for Taney I have ever read was that given by Justice Antonin Scalia in his magnificent dissent in Planned Parenthood v. Casey:

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15 Responses to October 12, 1864: Death of Roger B. Taney

  • “It is difficult at this day to realize the state of public opinion in regard to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence…” Taney, CJ

    The learned judge might have learned the views of the “civilized and enlightened portions of the world” less than twenty years after the Declaration of Independence from the decree of 16 Pluviôse An II (4 February 1794) “The National Convention declares the slavery of Negros to be abolished in all the colonies; in consequence, it decerns that everyone, without distinction of colour, domiciled in the colonies are French citizens and shall enjoy all the rights assured by the Constitution.”

    Hilaire Belloc has described the conviction that animated the Convention, perhaps the most “civilised and enlightened” body ever assembled in Europe – “The scorn which was in those days universally felt for that pride which associates itself with things not inherent to a man (notably and most absurdly with capricious differences of wealth) never ran higher; and the passionate sense of justice which springs from this profound and fundamental social dogma of equality, as it moved France during the Revolution to frenzy, so also moved it to creation.
    Those who ask how it was that a group of men sustaining all the weight of civil conflict within and of universal war without, yet made time enough in twenty years to frame the codes which govern modern Europe, to lay down the foundations of universal education, of a strictly impersonal scheme of administration, and even in detail to remodel the material face of society—in a word, to make modern Europe—must be content for their reply to learn that the Republican Energy had for its flame and excitant this vision: a sense almost physical of the equality of man.”
    Nowhere was this better exemplified than in the Décret du 16 Pluviôse An II

  • Of course Napoleon reinstituted slavery:


    As a matter of historical fact, Abraham Lincoln was correct in his statement that Judge Taney was incorrect in his assumption that the view of the negro was more favorable in 1857 than in 1776 in America:

    “In these the Chief Justice does not directly assert, but plainly assumes, as a fact, that the public estimate of the black man is more favorable now than it was in the days of the Revolution. This assumption is a mistake. In some trifling particulars, the condition of that race has been ameliorated; but, as a whole, in this country, the change between then and now is decidedly the other way; and their ultimate destiny has never appeared so hopeless as in the last three or four years. In two of the five States-New Jersey and North Carolina-that then gave the free negro the right of voting, the right has since been taken away; and in a third-New York-it has been greatly abridged; while it has not been extended, so far as I know, to a single additional State, though the number of the States has more than doubled. In those days, as I understand, masters could, at their own pleasure, emancipate their slaves; but since then, such legal restraints have been made upon emancipation, as to amount almost to prohibition. In those days, Legislatures held the unquestioned power to abolish slavery in their respective States; but now it is becoming quite fashionable for State Constitutions to withhold that power from the Legislatures. In those days, by common consent, the spread of the black man’s bondage to new countries was prohibited; but now, Congress decides that it will not continue the prohibition, and the Supreme Court decides that it could not if it would. In those days, our Declaration of Independence was held sacred by all, and thought to include all; but now, to aid in making the bondage of the negro universal and eternal, it is assailed, and sneered at, and construed, and hawked at, and torn, till, if its framers could rise from their graves, they could not at all recognize it. All the powers of earth seem rapidly combining against him. Mammon is after him; ambition follows, and philosophy follows, and the Theology of the day is fast joining the cry. They have him in his prison house; they have searched his person, and left no prying instrument with him. One after another they have closed the heavy iron doors upon him, and now they have him, as it were, bolted in with a lock of a hundred keys, which can never be unlocked without the concurrence of every key; the keys in the hands of a hundred different men, and they scattered to a hundred different and distant places; and they stand musing as to what invention, in all the dominions of mind and matter, can be produced to make the impossibility of his escape more complete than it is.

    It is grossly incorrect to say or assume, that the public estimate of the negro is more favorable now than it was at the origin of the government.”

  • Donald R McClarey

    I can well believe American views in 1776 were much closer to those of France in 1792 than the opinions prevailing in America in 1857.

    The writingss of Darwin and Galton in Britain and Gobineau in France certainly exercised a malign influence on the racial question, by suggesting that cultural diferences were genetically determined.

    Even Napoléon never sought to re-enslave those actually emacipated by the Décret du 16 Pluviôse An II, or to deny the right of citizenship on the grounds of colour. After the revolt in Haiti, he retained slavery in those colonies where the Decree had never been enforced, largely, one suspects as a measure of police.

  • “Even Napoléon never sought to re-enslave those actually emacipated by the Décret du 16 Pluviôse An II, or to deny the right of citizenship on the grounds of colour.”

    Oh, I think Napoleon intended to reinstitute slavery in Haiti. Only military defeat, largely caused by Yellow Fever, thwarted his plan. As it was, the French would not recognize Haitian independence for several decades.

  • call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

    I think this was the intent of the majority in “Plessey v Ferguson.”

    A court by it’s nature is decides rather narrow questions of fact and law not bring end to national divisions with several contending sides. It often causes more harm than the original problem.

  • As I get it justice Taney saw the slave as property, not a person.
    In Omaha In 1879, Standing Bear, Ponca chief, was incarcerated at ft Crook for going home to the Ponca area in Nebraska from the forced move to Oklahoma (to bury his son who had died along with many others of sickness and hunger. He testified for himself very well. He had the support of local journalist Tom Tibbels and changing public opinion. Judge Elmer S. Dundy ruled that “an Indian is a person”

    Taney was the first Catholic to be in his position. I wonder now how well out current Catholic jurists will acquit themselves in history.

  • By the time Taney presided over and issued Dred Scott, the Holy See had issued numerous condemnations of slavery and the slave trade. Most notable among them was the 1839 apostolic letter of Pope Gregory XVI, “In Supremo Apostolatus”, which concludes: “We prohibit and strictly forbid any Ecclesiastic or lay person from presuming to defend as permissible this traffic in Blacks under no matter what pretext or excuse, or from publishing or teaching in any manner whatsoever, in public or privately, opinions contrary to what We have set forth in this Apostolic Letter.”

    However, the American bishops by and large interpreted (at least publicly) In Supremo as referring only to “unjust” slave TRADE, and not to the institution of slavery itself. They did this for a number of reasons which I won’t get into here. Still, I have to wonder if anyone, at the time, ever seriously suggested that Chief Justice Taney be excommunicated for his role in Dred Scott, the way some pro-life Catholics (IIRC) called for Justice William Brennan’s excommunication for his role in Roe v. Wade?

  • Taney could have recused himself.

  • “In those days, our Declaration of Independence was held sacred by all, and thought to include all; but now, to aid in making the bondage of the negro universal and eternal, it is assailed, and sneered at, and construed, and hawked at, and torn, till, if its framers could rise from their graves, they could not at all recognize it.”
    When “We, the people” were all beasts of burden to England, every person understood the meaning of slavery and The Declaration of Independence.
    Justice, as the office and title suggests is the personification of God’s perfect and absolute Justice and Truth. Anyone who differs from the absolute Truth differs from absolute Justice and loses his office and title of Justice, personally excommunicating him/herself. Recussing oneself is a petition for wisdom to be granted by God.
    “There is no heaven, there is no hell”, simply means that “The kingdom of heaven is at hand” “Do unto others as you would be done unto”.
    Taney’s epitaph reads: “Here lies a man who was only three quarters human.” Brennan and Blackmun have been aborted 60 million times. Hitler has been sent to the gas chamber 6 million times making Hitler’s eternal life a little better, except for the fallen soldiers who laid down their lives for freedom. The atheist spends his life pursuing the eradication of Truth and when the atheist dies he gets what he pursued, that is, nothing. How will souls recognize the Truth? Excommunication would have been a blessing.

  • Elaine Krewer

    Exodus 21:16 is quite explicit in its condemnation of the plagiarist or man-stealer: “Whoever kidnaps a person, whether he has sold him or whether the victim is still in his possession, is certainly to be put to death”

    By the Roman law, likewise, a person became a slave only through capture in war or birth from a slave mother (D 1. 5. 5. 1. & seq) A free person was “res extra commercium” and any sale of a free person was void (J 3.23.5), including foundlings. No one could sell himself into slavery, but the praetor might refuse an action to someone who agreed to let themselves be sold to an unwitting buyer (Dig. 40, 12, 7 pr); that, however, only affected the remedy, not the right and s/he was legally free.

    A slave legally emancipated became a Roman citizen. Servius Tullius, the 6th king of Rome is sad to have been a slave in the household of his predecessor, Tarquinius Priscus; true or false, the legend illustrates the Roman attitude to slavery and manumission.

    The numerous papal condemnations of the enslavement of native peoples and of the slave trade (which was simply organized plagium) would have been applauded by the Roman jurists and the prophets of Israel, none of whom rejected slavery in principle.

  • Anzlyne: “Taney was the first Catholic to be in his position. I wonder now how well out(sic) current Catholic jurists will acquit themselves in history.”
    Antonin Scalia has publicly called for all individuals (since a human being needs only to exist as a member of the human species: “Human existence is the criterion for the objective ordering of human rights. Suarez) to be tried under constitutional due process of law. Due process of law would require that the newly begotten individual human being be found guilty of causing the imminent death of his mother, the mother whom he endowed with motherhood and as a parent; as he has brought forth the fatherhood of his father.
    Roe v. Wade required that the “sovereign personhood” of the newly begotten individual human being be proved in a court of law to be granted constitutional protection and rights. Our Constitutional posterity are inscribed in the Preamble as recipients of due process of law. At the least, Roe v. Wade was to grant the benefit of a doubt. Therefore, it might be said that Brennan and Blackmun without a doubt are indeed in hell. 60 million souls, and counting, are waiting for Justice.

  • Michael Paterson-Seymour: “The numerous papal condemnations of the enslavement of native peoples and of the slave trade (which was simply organized plagium) would have been applauded by the Roman jurists and the prophets of Israel, none of whom rejected slavery in principle.”
    Applauding the freedom of free men, as always, rejects slavery in principle. It cannot be both ways at the same time. It is the law of non-contradiction, and I am late for Mass.

  • “it might be said that Brennan and Blackmun without a doubt are indeed in hell.”

    I hope you don’t mean that literally. The Church does not ever declare a particular soul to be damned (not even Judas Iscariot, Nero, or Hitler) with the same degree of certainty that she declares a soul to be saved (via the beatification/canonization process).

    In fact it’s always been my understanding that it is wrong for ANY Catholic to state definitively that any particular deceased individual is in hell, since we have no way of knowing for certain what went through their mind in their last moments, or what was going on in their mind or soul when they committed their sins. Yes, one can agree that their souls were in grave danger and that they very well COULD have been damned barring some kind of miracle or condition known only to God, but to state flatly “X is certainly in hell”, or worse yet, to hope or desire that “X is in hell” is wrong. This is not a new idea, by the way; I have seen this principle explained in books that predate Vatican II by quite a few years. So I prefer not to speculate in any way upon the eternal condition of Justices Taney, Brennan, etc.

Ex parte Merryman

Sunday, December 2, AD 2012

One of the more troubling features of the Civil War is the roughshod way that both the governments of the Union and of the Confederacy tended to treat the civil rights of those who opposed them.  Both Lincoln and Davis suspended the right of habeas corpus during the war.  Habeas corpus, also called the Great Writ, dates back to the reign of Henry II in the Twelfth Century.  It is basically a petition by someone held by a government requesting that a court order, traditionally court orders were called writs, the government to show cause why the individual should continue to be held.  Hence the phrase “petition for a writ of habeas corpus”.  It is an important safeguard against arbitrary arrest and imprisonment without trial, and against wrongful imprisonment due to the rights of the prisoner petitioner having been violated at trial.  It has been regarded as an essential legal safeguard against government tyranny.  This week on Almost Chosen People, the American history blog that Paul Zummo and I run, I will have a series of posts examining the suspension of the writ of habeas corpus North and South.  Today we look at the most famous case to come out of the suspension of the writ, Ex parte Merryman.

Lincoln first suspended the writ of habeas corpus at the onset of the War, initially only between Philadelphia and Washington.  This was aimed at secessionists in Maryland who were viewed as posing a threat to the lines of communication between Washington and the North.  Many Marylanders were arrested after the suspension of the writ and held without trial.  In the case of  Ex Parte Merryman, John Merryman petitioned for a writ of habeas corpus from the Federal district court.  Merryman had been a Third Lieutenant in the Maryland state militia.  He was pro-Confederate and had been involved in burning railroad bridges and cutting telegraph wires under orders from his pro-Confederate superiors in the Maryland militia.  He had been arrested for treason by the Union Army and held without trial.  Chief Justice Roger Taney, pro-Confederate himself, sitting as a Federal circuit court judge for the District of Maryland, ruled that the President had no authority to suspend the writ of habeas corpus, that power residing in Congress, and that as a result he certainly could not delegate such a power he did not have to the military.  Taney ended his opinion on this ringing and acerbic note:

Yet, under these circumstances, a military officer, stationed in Pennsylvania, without giving any information to the district attorney, and without any application to the judicial authorities, assumes to himself the judicial power in the district of Maryland; undertakes to decide what constitutes the crime of treason or rebellion; what evidence (if indeed he required any) is sufficient to support the accusation and justify the commitment; and commits the party, without a hearing, even before himself, to close custody, in a strongly garrisoned fort, to be there held, it would seem, during the pleasure of those who committed him.

The constitution provides, as I have before said, that “no person shall be deprived of life, liberty or property, without due process of law.” It declares that “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” It provides that the party accused shall be entitled to a speedy trial in a court of justice.

These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.[3]

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5 Responses to Ex parte Merryman

  • Interesting, Don, thanks. Also interesting is that Taney’s affection for the rule of law was curiously absent in the case of one Dred Scott.

  • True Mike! Merryman makes a poor example of a misuse of the suspension of habeas corpus in my view. His actions of burning bridges and cutting telegraph wires to impede Union troops were, in my mind, tantamount to rebellion and treason and if the US were to face such a rebellion in the future I would want people like Merryman locked up. There were many other examples, North and South, where people were jailed for a time simply for speaking out, and those instances do bother me.

  • Unless, of course, we were the rebels.

  • From 1776:

    “Dr. Benjamin Franklin: A rebellion is always legal in the first person, such as “our rebellion.” It is only in the third person – “their rebellion” – that it becomes illegal.”

  • Just so. His statement on beer is just as profound.

    I do so hope Dr. Franklin made it to Heaven. Such an extraordinary wisdom could only be Divinely inspired.