Hampton I. Carson, “Roger B. Taney,” in The Library of Historical Characters and Famous Events, ed. J.P. Lamberton 343-353 (Boston: J.B. Millet Co., 1909).
ALREADY fifty-nine years of age when he was made Chief Justice of the Supreme Court of the United States, Roger B. Taney wielded the extensive power of his position for twenty-eight years, and during that time had great influence on the tendency of its decisions. Far from extending or exalting the power of the Federal Union as Marshall had done, he sought to protect the States in the full exercise of their reserved powers. Yet he did much to guide and regulate the wonderful material improvement of the country, due to the new applications of steam and various inventions.
Roger Brooke Taney was born on March 17, 1777, in Calvert county, Maryland. He was descended from an English Roman Catholic family, who were among the settlers of Maryland. In the faith which he had inherited he remained constant to the end. He graduated from Dickinson College in 1795, studied law at Annapolis and was admitted to the bar in 1799. He was also then elected to the State legislature from his native county as a Federalist, but when he removed to Frederick in 1801, he was defeated. His extensive and lucrative law practice carried him into courts of every kind, even into a court martial. In 1806 he married Anne Phebe Charlton Key, a sister of Francis Scott Key, the author of "The Star-Spangled Banner." Taney was a member of the State Senate from 1816 to 1821. In 1819 he defended Jacob Gruber, a Pennsylvania Methodist preacher, who had been indicted for preaching at a camp-meeting against slavery and thus inciting slaves to insurrection. In this trial Taney called slavery "a blot on our national character" and "a subject of national concern which may at all times be freely discussed." Taney removed to Baltimore in 1823 and soon became the acknowledged leader of the State bar. In 1827 he was appointed Attorney General of Maryland, although his political views as a Democrat were opposed to those of the Governor. In June 1831 he was appointed by President Jackson Attorney General of the United States, and became the President's most trusted adviser.
The Bank of the United States had been re-established at Philadelphia in April, 1816, with a charter for twenty years. It had nineteen branches, which were afterwards increased to twenty-five. Nicholas Biddle became its president in January, 1823. It was charged with having used its influence against Jackson in his first term. Professor W. G. Sumner says, "The public deposits were banging about the money-market like a cannon-ball loose in a ship's hold." Taney, who dreaded a moneyed aristocracy, abhorred all alliance between the Government and the money-power as fatal to liberty and high civilization. When the question of renewing the Bank's charter came up in 1832, Taney wrote to Jackson, advising against it. He believed it had violated its charter and was corrupting the country. When Congress passed a bill for its renewal in July, Jackson vetoed it. Taney was the only member of the Cabinet that approved the message. A year later he went further and suggested the removal of the Government deposits. The President decided on this course, but Duane, then Secretary of the Treasury, declined to plunge the fiscal concerns of the country into confusion at a time when they were conducted by the legitimate agent with safety and regularity. He was then removed from office and Taney put in his place in September, 1833. His order was issued at once that after October 1st the revenues should be deposited in certain State banks. The deposits already in the United States Bank (about $9,000,000) were to be drawn out when needed for the use of the Government. A panic and general distress followed, which the friends of the Bank attributed to the administration, while its enemies insisted that it had produced the crisis by unnecessarily contracting credits for political effect. It is impossible now to decide the controversy impartially. The difficulties of the Bank increased until it collapsed. Its president and four others were criminally prosecuted. Biddle died insolvent and broken-hearted. The removal of the deposits was denounced at the time by Webster, Clay, Calhoun and all the Congressional leaders. The Senate rejected Taney's nomination as Secretary of the Treasury after he had held the office nine months. This was the first time that the Senate had ever rejected a Cabinet appointment.
Taney returned to his legal practice and received ovations from Jackson's partisans. The President did not forget his obedient servant. In January, 1835, President Jackson nominated Taney for a seat on the Supreme Bench, and the Senate postponed consideration indefinitely. But the President was not to be balked. After Chief Justice Marshall died, he nominated Taney as his successor. In spite of the opposition of Clay and Webster, Taney's nomination was confirmed on March 15, 1836. From this time his history is merged in that of the Supreme Court. His opinions, so far as political questions were involved, tended to support State rights and decentralization, thus taking an opposite direction from those of Marshall. From 1836 to 1861 his opinions as circuit judge were reported by his son-in-law, J. M. Campbell. His other decisions are in "Supreme Court Reports."
The most famous of his decisions was that in the Dred Scott case in 1857, from which only Justices J. McLean and B. R. Curtis dissented. The negro Dred Scott had been a slave, and had been taken by his master, Dr. Emerson, an army surgeon, to Rock Island in 1834, thence to Fort Snelling, and back to Missouri in 1838. He sued for his freedom on the ground of having been taken into Illinois, a free State. The case was carried to the Supreme Court on questions of conflict between the laws of Missouri and Illinois. The primary questions were as follows:—Could a negro, whose ancestors were imported from Africa as slaves, become an American citizen? and, Did the slave's residence in a free State render him free? Chief Justice Taney in his decision explained that it was not the province of the Court to decide on the justice or policy of the law, but simply to interpret and administer it. Nevertheless the opinion did travel beyond the legal issues involved and introduced this memorable declaration about the status of negroes at the formation of the Union: "They had for more than a century 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 inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit." Although these words were rhetorical and not a legal conclusion, the decision was in keeping with them and denied Scott's citizenship and right to sue in the United States Courts. It also declared the Missouri Compromise unconstitutional, and virtually made slavery national. Taney's object was, undoubtedly, to put a stop to the anti-slavery agitation, by proving that slavery was imbedded in the Constitution, for which all citizens, except a few ultra Abolitionists, professed the greatest reverence. But the course of events carried the Northern people beyond that point. Their respect for the Constitution and for the Supreme Court was sadly shaken. They went back to the spirit of liberty in the Declaration of Independence. The Southern people, on the other hand, were delighted and became reckless. The difference between the two sections was brought to issue in the Presidential election of 1860 and decided by the Civil War.
When martial law was proclaimed in Maryland in 1861, Chief Justice Taney ordered the release of a prisoner seized by General Cadwalader, and denied the right of the President to suspend the writ of habeas corpus. In 1863, in a letter to the Secretary of the Treasury, he maintained that the act of Congress taxing the salaries of United States judges was unconstitutional. He died at Baltimore, October 12, 1864, and was buried at Frederick, Maryland.
Taney was an upright, kindly man, exemplary in his private life, inclined to fastidiousness in habit excepting that he was an inveterate smoker. He freed his slaves as soon as he inherited them, and pensioned the aged ones. In manner he was graceful and affable, yet dignified. His health was delicate and his temper quick, but by watchfulness he had acquired perfect self-control. He was very industrious, a close student and courageous in the expression of his opinion. He had wider experience as a lawyer than any of his predecessors, but he was hardly ever out of his native region, and he held the limited views of his section, yet at times his views have great judicial breadth. The error which has tarnished his fame was due to an earnest desire to allay sectional strife, but the reaction against the means employed produced tenfold more trouble and disaster.
THE DRED SCOTT DECISION. (March 7, 1857.)
From the consideration of questions such as ordinarily arise the Court glided at a single turn to the brink of a fearful precipice. No monitory shuddering warned them of impending ruin. The broad current of decision and of argument flowed on as usual, unbroken by hidden obstructions or whirling eddies, as smooth as the glassy surface of a descending stream upon the very edge of its fall. In a moment they became involved. The wild passions of the Kansas-Nebraska struggle had reached the Court. The agony of the conflict between slavery and freedom, which touched the tongue of Phillips with fire and raised the soul of Sumner to the stars, had wrapped them in its frenzy, and in a moment of bewilderment they believed that they had the judicial power to deal with a political and moral question, and by a judgment, which they vainly endeavored to induce the country to believe was not extra-judicial, to settle the most agitated question of the day. The judgment was pronounced, but was promptly reversed by the dread tribunal of War.
At the December term, in the year 1856, the case of Dred Scott, plaintiff in error, v. John F. A. Sandford, stood for a second argument, on two questions stated by an order of the Court to be argued at the bar. The first question was whether Congress had constitutional authority to exclude slavery from the Territories of the United States, or in other words, whether the Missouri Compromise Act, which excluded slavery from the whole of the Louisiana Territory, north of the parallel 36° 30', was a constitutionally valid law. The second question was whether a free negro of African descent, whose ancestors were imported into this country and sold as slaves, could be a citizen of the United States, under the Judiciary Act, and as a citizen could sue in the Circuit Court of the United States.
The action had been brought by Scott in the Circuit Court of the United States for the district of Missouri, to establish the freedom of himself, his wife and their two children. In order to give the court jurisdiction of the case, he described himself as a citizen of the State of Missouri, and the defendant, who was the administrator of his reputed master, as a citizen of the State of New York. A plea to the jurisdiction was filed, alleging that the plaintiff was not a citizen of Missouri, because he was a negro of African descent, whose ancestors were of pure African blood, and were brought into this country and sold as slaves. To this plea there was a general demurrer, which was sustained by the court and defendant was ordered to answer over. A plea to the merits was then entered, to the effect that the plaintiff and his wife and children were negro slaves, the property of the defendant. The case went to trial, and the jury, under an instruction from the Court upon the facts of the case that the law was with the defendant, found a verdict against the plaintiff, upon which judgment was entered, and the case was then brought upon exceptions by writ of error to the Supreme Court of the United States.
It is clear that the first question raised by the record arose under the plea to the jurisdiction of Circuit Court, and after a careful study of the opinions and dissenting opinions, it is equally clear that if it had been decided by the Supreme Court that Scott was not a citizen by reason of his African descent, the only thing that could be properly done would be to direct the Circuit Court to dismiss the case for want of jurisdiction, without looking to the question raised by the plea to the merits. But if the Court should decide that he was a citizen notwithstanding his African descent, then the question raised by the plea to the merits relating to his personal status as affected by his residence in a free territory and his return to Missouri would have to be acted upon. This latter question involved the Constitutional power of Congress to prohibit slavery in that part of Louisiana territory purchased by the United States from France, and also the collateral question as to the effect to be given to a resident in the free State of Illinois, and a subsequent return to Missouri. Upon an action brought in the State Court many years prior, the Supreme Court of Missouri had held Scott to be still a slave, upon the broad ground that no law of any other State or Territory could operate in Missouri upon personal status, even if he did become an inhabitant of such other State or Territory.
The case was first argued before the Supreme Court ot the United States at the December term of 1855, and it was found, after consideration and comparison of views, that it was not necessary to decide the question of Scott's citizenship under the plea to the jurisdiction, but that the case should be disposed of by an examination of the merits. Mr. Justice Nelson was assigned to write the opinion of the court upon this view of the case, from which, however, Justices McLean and Curtis dissented. The opinion prepared by Nelson, judging from its internal evidence, as well as the history of it given by him, was designed to be delivered as the opinion of the majority of the bench, and in disposing of the plea to the jurisdiction, he said: " In the view which we have taken of the case, it will not be necessary to pass upon this question, and we shall therefore proceed at once to an examination of the case upon its merits. The question upon the merits, in general terms, is whether or not the removal of the plaintiff, who was a slave, with his master from the State of Missouri to the State of Illinois with the view to a temporary residence, and after such residence and return to the slave State, such residence in the free State works emancipation." The opinion then disposed of the case upon the ground that the highest court in the State of Missouri had decided that the original condition of Scott had not changed and that this was a question of the law of Missouri on which the Supreme Court of the United States should follow the law as it had been laid down by the highest tribunal of the State. The conclusion reached by the opinion was not that the case should be dismissed for want of jurisdiction, but that the judgment of the Circuit Court which had held Scott to be still a slave should be affirmed. Shortly after this, however, a motion was made by Mr. Justice Wayne, in a conference of the court for a reargument of the case, and the two questions, which we have stated at the outset of our discussion of the matter, were carefully framed by the Chief Justice to be argued at the bar de novo. The cause was argued by Montgomery Blair and George Ticknor Curtis, in behalf of the plaintiff in error, and Reverdy Johnson and Senator Geyer, of Missouri, for the slave owner.
At the second argument Mr. Justice Wayne became fully convinced that it was practicable for the Supreme Court of the United States to quiet all agitation on the question of slavery in the Territories by affirming that Congress had no Constitutional power o prohibit its introduction, and, unfortunately for himself, his associates, and the country, persuaded the Chief Justice and Justices Grier and Catron of the public expediency of this course. The opinion of the Court was then pronounced by Chief Justice Taney, in which Mr. Justice Wayne absolutely concurred. Mr. Justice Nelson read his own opinion, which had been previously prepared as that of the Court. Mr. Justice Grier concurred in Nelson's opinion and was of opinion also that the Act of 6th March, 1820, known as the " Missouri Compromise" was unconstitutional and void, as stated by the Chief Justice. Justices Daniel and Campbell concurred generally with the Chief Justice, while Mr. Justice Catron thought that the judgment upon the plea in abatement was not open to examination in this Court, and concurred generally with the Chief Justice upon the other points involved. Justices McLean and Curtis alone dissented, the former stating that the judgment given by the Circuit Court on the plea in abatement was final. He was also of opinion that a free negro was a citizen, and that the Constitution justified the Act of Congress in prohibiting slavery, and further that the judgment of the Supreme Court of Missouri pronouncing Scott to be a slave was illegal, and of no authority in the Federal Court. . . .
No portion of Chief Justice Taney's opinion is more labored or constrained than the effort to show that, after disposing of the plea in abatement, which, when sustained as it had been upon demurrer, ousted the jurisdiction of the Court, the Court had still a right to enter upon a discussion of the merits of the case. And no part of the dissenting opinion of Mr. Justice Curtis is more powerful, from a legal point of view, than his consideration of the doctrines of pleading involved, and fairly arising out of the state of the record.
The Chief Justice used the following language, after having shown historically that at the time of the adoption of the Constitution of the United States free negroes were not citizens: "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 inferior that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race."
The injustice which has been done to Chief Justice Taney consists in the partisan use which was made of the single phrase, "That they had no rights which the white man was bound to respect." The words were violently torn from the context of the opinion, and quoted as though the Chief Justice had intended to express his own individual views upon the question, naturally raising a storm of indignation at their inhumanity and barbarity. That such were not the personal views of the Chief Justice, no careful or conscientious student of his life can for a moment suppose; he had long before manumitted all his own slaves, had never refused his professional aid to negroes seeking the rights of freedom ; had even defended a person indicted for inciting slaves to insurrection, at a time when the community were violently excited against the offender and against Taney himself for his defense, and, when pressed with the gravest business, has been known to stop in the streets of Washington to help a negro child home with a pail of water. He was, moreover, a man of the greatest kindness, charity, and sympathy. The real wrong-doing of which the Chief Justice was guilty was in attempting by extra-judicial utterances to enter upon thesettlement of questions purely political, which were beyond the pale of judicial authority, and which no prudent judge would have undertaken to discuss. It was a blunder worse than a crime, from the consequences of which he and his associates can never escape.—HAMPTON I. CARSON.