Replies

[Woodpusher] The dicta of Chief Justice Taney establish only his own opinion on some matter."
[BroJoeK] And today Crazy Roger Taney's opinions are supported by almost nobody except, curiously, our own DiogenesLamp who claims, amazingly, that the US Constitution made abolition by states illegal!
So DiogenesLamp tells us that Lincoln was correct in saying the Supreme Court could make Illinois a slave state.
DiogenesLamp claims Crazy Roger's SCOTUS was on the verge of correctly declaring abolition unconstitutional.

I am not DiogenesLamp. If you have a problem with DiogenesLamp, tell DiogenesLamp about it.

Each state was free to not establish slavery within the law of said state. It is also clear that, from the Founding to the Civil War, slave owners were able to transport their slave property through free states. Thomas Jefferson took his slave Sally to France. This did not mean that France had been unable to prohibit slavery. Sally could have petitioned for freedom in France, but didn't. Sally returned to the plantation with Thomas Jefferson and her slave status reattached.

Slaves brought into a free state with the consent of their owner could petition for their freedom, however, due to circumstances, they generally needed someone to do it for them. Inexplicably, there was no uprising of White Northern abolitionists in the North to petition the courts to free slaves in the North who were there with consent of their owners. And, of course, if the slave was found in the North as a runaway, then the Constitution, Art. 4, Sec. 2, Cl. 3, mandates,"No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due." In the Lemmon case, New York abolitionists petitioned the Court on behalf of the slaves, and the slaves (who had not run away) were set free.

The Underground Railway went all the way to Canada. I don't know what that was all about but suspect the fleeing slaves must have been hockey fans.

And as gradual emancipation was so effective at turning slaves into free men, it is astounding that the 1860 census found more free Blacks in the slave states than in the free states. It makes one wonder where al the slaves freed by gradual emancipation went.

Now you, woodpusher, tell us: no, no, no... that's not what Crazy Roger said, it's not what Crazy Roger meant and anyway, nobody else at the time agreed with Crazy Roger.
But your problem is that a lot of people did agree, especially slaveholders, and a lot of Northerners like Lincoln took them seriously.

The Court opinion is absolute proof of what Taney did, and did not, opine. Those who fantasize that misbeliefs adopted by many misguided people outweigh the beliefs of the nine as a matter of law are the crazy ones. Those who believe and preach all sorts of fictions attributed to the opinion by partisans aren't too good either.

That the abolitionist press lied and distorted, and people believed the lies and distortions then, and for political reasons, the lies and distortions continue to be propagated today. It is a problem, but not of my creation.

Curtis handed his opinion in on the last day of the term, March 7, 1857. On the same day, Curtis gave a copy of his opinion to a Boston editor. A version of Taney's opinion was published by the St. Louis Leader on March 13, 1857.

The Scott case was decided on March 18, 1857.

Having been confidentially informed that Taney had revised his opinion, On April 2, 1861 before publication, Curtis went behind Taney's back and sought a copy from the clerk. The clerk refused to provide said copy and informed Taney who had orally directed the clerk to not provide a copy to anyone before official publication. A clash of correspondence ensured between the Curtis and Taney.

Taney wrote:

Soon after the decision was given, circumstances occurred which satisfied the court that justice to itself required that the opinion in this case should be reported and brought before the public under the usual supervision and responsibility of the officer appointed by the court to perform that duty; and that it ought not to be separated from all of the other opinions delivered by the court during the term, and hurried before the public in an unusual manner, by irresponsible reporters, through political and partisan newspapers, for political and partisan purposes. It became my duty to carry into effect this determination of the court; and I therefore gave an order to Mr. Carroll not to give a copy to any one but the official reporter.
The order in the first instance was verbal. But some time before the opinion was printed and had undergone the accustomed revision of a printed copy, Mr. Carroll mentioned to me that he had been applied to for a copy by Mr. Charles P. Curtis, and wished to know whether, from his near and intimate connection with you, he would not be excepted from the operation of the order. Upon my inquiring if Mr. Curtis had stated for what purpose he wished a copy, he showed me his letter, in which Mr. Curtis says he is about to publish a large edition of your opinion in a pamphlet, and wished “ to introduce that of the Chief Justice” with yours, meaning, I presume, the opinion of the court delivered by me. I told Mr. Carroll he could not have it for such a purpose. It appeared to me that Mr. Curtis himself, upon more consideration, would feel that his plan was open to serious objections. For the publication of your individual opinion in this manner, in connection with that of the court, leaving out the individual opinions of the other judges, would hardly be respectful to them, as it would seem to imply that he thought their opinions less worthy of publication than yours; and, also, that upon further reflection he would hardly feel justified in anticipating the official reporter in the publication of this opinion of the court, and thereby taking for his own emolument the profits arising from its sale, which legitimately and justly belong to the officer appointed by law to perform that duty. And it is due to frankness also to say, that I thought it would have been as well for any gentleman, before he undertook to report the opinion of the court under his own supervision, and in what manner and in what form he pleased, anticipating the officer of the court, to have asked and obtained leave of the tribunal to do so. . . .
I put the order in writing, with the concurrence and approbation of Mr. Justice Wayne and Mr. Justice Daniel, who were the only two justices beside myself then in Washington, and authorized Mr. Carroll to show it, or give a copy of it, to any one who might apply for a copy of the opinion.

Taney opined that the Court had been, "greatly misunderstood and grossly misrepresented in publications in the newspaper." He insisted that the Court opinion "not be brought before the public garbled and mutilated, and with false glosses attached to it."

In their heated exchange of correspondence, Taney informed Curtis that it was his understanding that Curtis did not want the opinion for any official purpose, stating, "On the contrary, you announced from the bench that you regarded the opinion as extra-judicial, and not binding upon you or any one else."

Justice Curtis wrote,

As respects what you say concerning Mr. C. P. Curtis’s application to the clerk for a copy of the opinion of the court, I have only to observe, that whatever application Mr. Curtis may have made was without my knowledge; that I had no connection with it whatever, and do not perceive why I should make any observations concerning it, or concerning the purpose for which you say it was desired.

The son of Justice Curtis later wrote,

I find among the papers relating to this case a note in the handwriting of Judge Curtis, in which he says that Mr. Charles P. Curtis wrote to him to ask if he knew how he (Mr. C. P. Curtis) could obtain a copy of the opinion of the court. The note then proceeds: “ I answered that I did not. Subsequently, he mentioned to me that he had a letter from Mr. Carroll, saying that he could have a copy for sixty dollars ; upon which I made no comment.”

Taney wrote to Justice Taney,

Since my return home, I have again looked over it; and as I have no desire to continue the unpleasant correspondence which you have been pleased to commence, I should have been glad to find that there was nothing in your last letter which called for a reply on my part.
But there are some passages which cannot be passed by without notice, because my silence in relation to them might lead to erroneous inferences, unjust to the judges with whom I concurred in opinion, as well as to myself.
You say that you were informed, after you returned home, that the opinion of the court, in the case of Scott v. Sandford, was materially altered after it was delivered from the bench. I do not mean to inquire through what channel you sought or obtained information on that subject. But however obtained, if it came to you in a way sufficiently authentic to induce you to act upon it, perhaps the more usual and appropriate course between members of the same tribunal would have been to address an inquiry to the judge who delivered the opinion. And if this had been done in the present case, you would have been promptly and frankly answered. But as you now, for the first time, inform me that this information induced you to address your letter to me demanding a copy, it is proper to say that it had no foundation in truth. There is not one historical fact, nor one principle of constitutional law. or common law, or chancery law, or statute law, in the printed opinion, which was not distinctly announced and maintained from the bench; nor is there any one historical fact, or principle, or point of law, which was affirmed in the opinion from the bench, omitted or modified, or in any degree altered, in the printed opinion. You will find in it proofs and authorities to maintain the truth of the historical facts and principles of law asserted by the court in the opinion delivered from the bench, but which were denied in the dissenting opinions. And until the court heard them denied, it had not thought it necessary to refer to proofs and authorities to support them; regarding the historical facts and principles of law which were stated in the opinion as too well established to be open to dispute. But you will find nothing altered, nothing in addition but proofs to maintain the truth of what was announced and affirmed in the opinion delivered.
There is another topic in your letter upon which I ought not to be silent. You speak of the opinion of the court as having been improperly kept back from the public when they had a right to know it. It is true that the opinion was not given to a partisan, political journal, to be published for political and partisan purposes. But it was delivered in open court, in the hearing of every one who chose to listen. It was placed in the hands of the office!- appointed by law to report it, as soon as it had undergone the usual revision. And it has been published in the manner in which the opinions of the court have been published for more than fifty years; and much sooner after the close of the term than they have commonly been issued by the reporter. Yet I have never heretofore heard the court charged with improperly keeping back its opinion from the people.
It is also true, as you say, that the constitutional questions decided by the court in this case were at the time, and still are, the subjects of earnest discussion as political questions, and the public mind much excited about them. But this has often happened before; and whole States have been highly agitated upon constitutional questions of the deepest interest, at the very moment when they were brought before the Supreme Court and there decided. And it has happened, too, on such occasions, that differences of opinion existed among the members of the court, and the opinion of the majority has been elaborately contested and freely commented on by the dissenting members; and it has likewise happened in such cases that the opinion of the majority, after it was pronounced, was vehemently assailed and misunderstood and misrepresented in the political newspapers and journals of the day; — yet it was never deemed necessary, on that account, to depart from the usual and established mode of promulgating the opinion of the court, nor the opinion of any one of the dissenting judges. The majority who concurred in and gave the opinion, and the judges who dissented, were all of them content that their respective opinions should be reported and published in the usual manner, and submitted at the same time, and in the same volume, to the sober and enlightened judgment of the public; so that each opinion might speak for itself and be compared with the others when it was read. And although this has heretofore been the uniform course of proceeding, I have never heard the court or the dissenting judges accused of improperly keeping back their opinions from the public.
And if you supposed there was any thing new and peculiar to this case which made it proper to depart from the established usage, and to publish the opinion in the public journals immediately after it was delivered, it is to be regretted that you did not suggest such a measure to the court. A proposition of that kind coming from one of its members, his reasons for it would undoubtedly have been respectfully listened to and considered. And if the majority had come to the same conclusion, directions could have been given to the official reporter to carry the plan into execution. In that case a copy of the opinion of the court and of the judges who concurred in it, as well as of those who dissented, might have been prepared and ready for the press as soon as the judgment was pronounced; and all of the opinions would have appeared simultaneously and together, so that he who read one would have the others before him, and be able to compare them together, and not be left to form his judgment of the one from what might be said of it in another and adverse opinion.
But the measures taken by you effectually prevented the publication of the opinions together or simultaneously. You never suggested (at least I never heard of such a suggestion) that you thought the established mode of reporting and publishing the opinion of the court ought, in this instance, to be departed from. And although I received a note from you in relation to the law library the day after the opinions had been delivered, and the day before you left Washington, you said nothing in it about the publication of the opinions, nor intimated that a more prompt and different mode of publication than the usual one was desirable. Nor did you apprise me of your intention to publish at once your dissenting opinion. And I learned with great surprise that, immediately on your return to Boston, you had published it in a political journal, and that it was distributed, not only to the subscriliers to the newspaper, but widely circulated throughout the country. You yourself, therefore, rendered it impossible that the opinions could come out together, as you say would have been the case in England; and equally impossible that the readers of one should have the other always at hand in order to compare them and judge between them; for the thousands, and tens of thousands, of persons who read your opinion in the journal in which it was published, and in other newspapers associated with it in political partisanship, could by no possibility have the opinion of the court before them until some time after yours had been read, and made its impression. And the far greater part of the readers among whom it was hurried and profusely scattered will never have an opportunity of reading the opinion of the court, nor of knowing any thing about it except what they learn from your version of the opinion, and your account of the proofs and authorities on which it is founded. . . .
And the fact that the public mind had become highly agitated in several States upon these questions by the near approach of their elections, seemed to render any departure from the long-established practice of the court at such a time peculiarly objectionable. Hence the order of which you complain, and which you represent as having kept back from the people what they had a right to have. The order prevented the court from being placed in the attitude of a combatant in the political arena without its consent, but it did nothing more.
You complain also, that you were not consulted when the court came to this conclusion, and say that it was a violation of your judicial rights, as a member of the tribunal, to pass the order without first advising with you. But you will recollect that you had then published your own opinion, adverse to that of the court, without consulting the judges who gave the opinion, or apprising them of your intention; and I cannot see any just ground upon which you could claim the right to share in the control and disposition of the opinion of the court, when the avowed object of your dissenting opinion was to impair its authority and discredit it as a judicial decision.
I have now done. I had, indeed, supposed that, whatever difference existed on the bench, all discussion and controversy between members of the tribunal was at an end when the opinions had been delivered; and I believed that this case, like all others that had preceded it, would be submitted calmly to the sober and enlightened judgment of the public in the usual channels of information, and in the manner in which it has heretofore been thought that judicial decorum and propriety required. But if it is your pleasure to address letters to me charging me with breaches of official duty, justice to myself, as well as to those members of the court with whom I acted, makes it necessary for me to answer and show the charges to be groundless; and a plain and direct statement of the facts appears to be all that is necessary for that purpose.

Quite properly, Curtis soon resigned from the Court. The government accepted his resignation without the usual formality of thanking him for his faithful and diligent service in the performance of his duties.