Posted on 08/20/2004 5:43:21 AM PDT by TexConfederate1861
Imagine that America had a Chief Justice of the United States who actually believed in enforcing the Constitution and, accordingly, issued an opinion that the war in Iraq was unconstitutional because Congress did not fulfill its constitutional duty in declaring war. Imagine also that the neocon media, think tanks, magazines, radio talk shows, and television talking heads then waged a vicious, months-long smear campaign against the chief justice, insinuating that he was guilty of treason and should face the punishment for it. Imagine that he is so demonized that President Bush is emboldened to issue an arrest warrant for the chief justice, effectively destroying the constitutional separation of powers and declaring himself dictator.
An event such as this happened in the first months of the Lincoln administration when Abraham Lincoln issued an arrest warrant for Chief Justice Roger B. Taney after the 84-year-old judge issued an opinion that only Congress, not the president, can suspend the writ of habeas corpus. Lincoln had declared the writ null and void and ordered the military to begin imprisoning thousands of political dissenters. Taney’s opinion, issued as part of his duties as a circuit court judge in Maryland, had to do with the case of Ex Parte Merryman (May 1861). The essence of his opinion was not that habeas corpus could not be suspended, only that the Constitution requires Congress to do it, not the president. In other words, if it was truly in "the public interest" to suspend the writ, the representatives of the people should have no problem doing so and, in fact, it is their constitutional prerogative.
As Charles Adams wrote in his LRC article, "Lincoln’s Presidential Warrant to Arrest Chief Justice Roger B. Taney," there were, at the time of his writing, three corroborating sources for the story that Lincoln actually issued an arrest warrant for the chief justice. It was never served for lack of a federal marshal who would perform the duty of dragging the elderly chief justice out of his chambers and throwing him into the dungeon-like military prison at Fort McHenry. (I present even further evidence below).
All of this infuriates the Lincoln Cult, for such behavior is unquestionably an atrocious act of tyranny and despotism. But it is true. It happened. And it was only one of many similar constitutional atrocities committed by the Lincoln administration in the name of "saving the Constitution."
The first source of the story is a history of the U.S. Marshal’s Service written by Frederick S. Calhoun, chief historian for the Service, entitled The Lawmen: United States Marshals and their Deputies, 1789–1989. Calhoun recounts the words of Lincoln’s former law partner Ward Hill Laman, who also worked in the Lincoln administration.
Upon hearing of Laman’s history of Lincoln’s suspension of habeas corpus and the mass arrest of Northern political opponents, Lincoln cultists immediately sought to discredit Laman by calling him a drunk. (Ulysses S. Grant was also an infamous drunk, but no such discrediting is ever perpetrated on him by the Lincoln "scholars".)
But Adams comes up with two more very reliable accounts of the same story. One is an 1887 book by George W. Brown, the mayor of Baltimore, entitled Baltimore and the Nineteenth of April, 1861: A Study of War (Johns Hopkins University Press, 1887). In it is the transcript of a conversation Mayor Brown had with Taney in which Taney talks of his knowledge that Lincoln had issued an arrest warrant for him.
Yet another source is A Memoir of Benjamin Robbins Curtis, a former U.S. Supreme Court Justice. Judge Curtis represented President Andrew Johnson in his impeachment trial before the U.S. Senate; wrote the dissenting opinion in the Dred Scott case; and resigned from the court over a dispute with Judge Taney over that case. Nevertheless, in his memoirs he praises the propriety of Justice Taney in upholding the Constitution by opposing Lincoln’s suspension of habeas corpus. He refers to Lincoln’s arrest warrant as a "great crime."
I recently discovered yet additional corroboration of Lincoln’s "great crime." Mr. Phil Magness sent me information suggesting that the intimidation of federal judges was a common practice in the early days of the Lincoln administration (and the later days as well). In October of 1861 Lincoln ordered the District of Columbia Provost Marshal to place armed sentries around the home of a Washington, D.C. Circuit Court judge and place him under house arrest. The reason was that the judge had issued a writ of habeas corpus to a young man being detained by the Provost Marshal, allowing the man to have due process. By placing the judge under house arrest Lincoln prevented the judge from attending the hearing of the case. The documentation of this is found in Murphy v. Porter (1861) and in United States ex re John Murphy v. Andrew Porter, Provost Marshal District of Columbia (2 Hay. & Haz. 395; 1861).
The second ruling contained a letter from Judge W.M. Merrick, the judge of the Circuit Court of the District of Columbia, explaining how, after issuing the writ of habeas corpus to the young man, he was placed under house arrest. Here is the final paragraph of the letter:
After dinner I visited my brother Judges in Georgetown, and returning home between half past seven and eight o’clock found an armed sentinel stationed at my door by order of the Provost-Marshal. I learned that this guard had been placed at my door as early as five o’clock. Armed sentries from that time continuously until now have been stationed in front of my house. Thus it appears that a military officer against whom a writ in the appointed form of law has first threatened with and afterwards arrested and imprisoned the attorney who rightfully served the writ upon him. He continued, and still continues, in contempt and disregard of the mandate of the law, and has ignominiously placed an armed guard to insult and intimidate by its presence the Judge who ordered the writ to issue, and still keeps up this armed array at his door, in defiance and contempt of the justice of the land. Under the circumstances I respectfully request the Chief Judge of the Circuit Court to cause this memorandum to be read in open Court, to show the reasons for my absence from my place upon the bench, and that he will cause this paper to be entered at length on the minutes of the Court . . . W.M. Merrick Assistant Judge of the Circuit Court of the District of Columbia
As Adams writes, the Lincoln Cult is terrified that this truth will become public knowledge, for it if does, it means that Lincoln "destroyed the separation of powers; destroyed the place of the Supreme Court in the Constitutional scheme of government. It would have made the executive power supreme, over all others, and put the president, the military, and the executive branch of government, in total control of American society. The Constitution would have been at an end."
Exactly right.
August 19, 2004
Thomas J. DiLorenzo [send him mail] is the author of The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War, (Three Rivers Press/Random House). His latest book is How Capitalism Saved America: The Untold Story of Our Country’s History, from the Pilgrims to the Present (Crown Forum/Random House, August 2004).
Copyright © 2004 LewRockwell.com
That would explain it then. 7th grade is the "official" Texas history year for virtually all public schools in the state.
I suppose, then, that would explain your 7th-grade understanding of the subject.
That's the point though - they were very few in number, very unstable in their control, and none which lasted either the duration of the war or in any place so long as the confederates thought it was worthwhile to remove them. Most of them consisted of a small landing party somewhere along the coast that either occupied an area and then left it behind to be easily retaken when they moved up the coast or got pushed out to sea entirely (as happened when the occupied Galveston).
As for the orders you post purporting to come from Fort Bliss near El Paso, they are the apparent product of an isolated outpost that the californians occupied during the second half of the war after the confederates left the place for want of any use since it was out in the middle of nowhere. Yankee indian patrols were stationed in Fort Bliss at the war's outset but they retreated from it into New Mexico in 1861 as Baylor with volunteers to relieve the city of Mesilla (the capital of southern new mexico, which was confederate in sympathy but was under union occupation). Fort Bliss was used by the confederates from then through the summer of 1862 as a supply base for various operations and skirmishing in the New Mexico-Arizona-Colorado region. It was reduced to rubble when the confederates abandoned it for lack of any need. Carleton and a tiny calvalry band looks to have arrived a few months later, set up camp nearby at an old mill site, and spent the rest of the war fighting apaches with virtually no coordination over much of anything from Washington. Juarez popped up there for a brief period while hiding from the european forces. The confederates appear to have simply ignored him for most of the remainder of the war because he wasn't doing anything and in fact really couldn't do much of anything, being stuck out in the middle of nowhere.
...which would put me about a decade ahead of your preschool renderings of "history," which seem to dwell in the realm of chopped down cherry trees and bearded stovepipe hat guys who chop up logs.
Uh huh
Texas was a backwater in the ACW. Especially west Texas. The best troops had been sent east with Hood and Robertson, et al., and there were few strategic objectives to be had.
The capture of Fort (Jefferson) Davis in August 1862 had great symbolic value, however, even though it was just a few, mostly ramshackle adobe buildings.
As you could see in the previous post with the OR citations, the Union and rebel forces were somewhat more concerned about the Indians than each other, and when the rebel POWs were paroled to San Antonio, they were escorted for their own safety.
Your story about the confederates abandoning the Rio Grande forts "for lack of any need" not jibe with leaving their sick and wounded behind. Those, from several outposts, numbered over 100. It sounds to me like the able-bodied Texans quickly skedaddled.
Here's what the Handbook of Texas says about Fort Davis (which was NOT named for Davis as president of the CSA, but rather because it was established by Secretary of War Jefferson Davis in 1854):
With the beginning of the Civil War, United States troops evacuated Fort Davis under orders from Brig. Gen. David E. Twiggs, commander of the Eighth United States Military District, and were quickly replaced by Col. John R. Baylor's Confederate cavalry forces in April 1861. Confederate troops occupied the post for almost a year, then retreated to San Antonio after failing to take New Mexico. For the next five years Fort Davis lay abandoned, and Indians used the wood from its buildings for fuel.
It did not see military use again until 1867 and, as the National Park Service's records indicate, no military officer on either side so much as set foot there between 1862 when confederate Lt. W.P. White returned to San Antonio and July of 1867 when the federal calvalry showed up to fight the indians. Another site tells us the following:
A Federal cavalry detachment visited Fort Davis in August, 1862, found most of the buildings in disrepair, and left the next day. The remains of the post lay empty for the next five years. (http://www.texasbeyondhistory.net/forts/davis/camp.html)
Ah, the "capture" of Fort Davis in 1862. That must've been some symbolism, I tell you what! I mean, imagine the shock on those non-existant confederate defender's faces when they learned that a couple of yankees on horseback stumbled upon the Apache bonfire yard that used to be Fort Davis! And to think - they even spent a night amidst the rubble...absolutely crushing to CSA morale, no doubt! Of course this all leaves us with another question: where exactly did you get your information the Battle of Fort Davis, aka the weenie roast at the Apache wood pile, in August of 1862? Oh, that's right. You got it where you get all your information, especially for court cases and other "official" records: you pulled it out of your @$$.
Your story about the confederates abandoning the Rio Grande forts "for lack of any need" not jibe with leaving their sick and wounded behind.
Garbage. They left the wounded behind because El Paso was the only town of any size in the area, and even it had a population of only 200 civilians in the 1860's. Marching wounded soldiers across 500 miles of Texas desert in the middle of August would've been a death sentence, so instead you leave them in town till they heal and till the whether is a little less harsh.
FN 76. The opinion accompanies Taney's letter to Secretary of State Edward Livingston, May 28, 1832, Miscellaneous Letter, Department of State Papers, National Archives. The supplement accompanies Taney's letter to Livingston, Jun 9, 1832. See Carl B. Swisher, Roger B. Taney, New York, 1935), pp 151-159; Marvin Laurence Winitsky, "The Jurisprudence of Roger B. Taney," PhD dissertation, UCLA, 1973, pp 92-94. Says Fehrenbacher, "Thus Taney, in 1832, formulated the same harsh racial doctrine that he would proclaim from the bench twenty-five years later."
The idea that Taney was personally opposed to slavery is a myth. As Fehrenbacher demonstrated, the Taney myth runs deep in the pro-Taney literature, but has little or no basis in fact. Fehrenbacher notes:
"This legend of the antislavery Taney rests almost entirely upon two actions taken nearly 40 years before the Dred Scott decision. In 1818, he served as defense attorney for an abolitionist minister and in the process denounced slavery as an evil that must in time be "gradually wiped away." Beginning the same year, emancipated his own slaves to the number of at least eight. Whatever moral conviction may have encouraged these actions, it does not appear again in his public record or private correspondence. His attitude on the bench was consistently and solicitously proslavery. By 1857 he had become as fanatical in his determination to protect the institution as Garrison was in his determination to destroy it."
His previous post was a blustery harangue about how yankee forces have "captured" Fort Davis, Texas in August of 1862 and how this was a crushing symbolic blow for the confederates since Fort Davis was named after Jefferson Davis. To anybody who has driven the I-10 route from San Antonio to El Paso, Fort Davis is located smack dab in the middle of that vast empty 500 mile desert you cross, and a good ways south of the interstate at that.
Well, the desert mirages must've been getting to those yankee calvalry folks back in 1862 because their secret account of a "battle" there, which only capitan knows about and which he appears to have obtained via a fax sent from a west Texas kinkos, never happened! Fort Davis was never captured by anybody and it's unlikely that the confederates even knew that capitan's tiny yankee calvalry group had even visited the place.
Looking back at the REAL history, we learn that Fort Davis, being of no use since it was in the absolute middle of nowhere, was abandoned by its tiny confederate garrison sometime in early 1862. It turned into rubble shortly thereafter when the Apaches discovered it was a source of free bonfire wood. Then one day in August a stray yankee cavalry patrol stumbled into the area, found the abandoned and wrecked Fort Davis, set up their campfire there for the night, said "gee, what a dump" and left the next morning! And so went the "Battle of Fort Davis" - doubtless a vital union "victory" in their efforts to conquer Texas, even though nobody set another foot in the place from the morning they left until 1867. Then again, when your side gets whupped as badly as the yankees did at Sabine Pass, I suppose it's natural to start making up "victories" for yourself out of thin air.
As an aside, one has to wonder if Fehrenbacher includes Justice Curtis' memoirs in this so-called "pro-Taney literature." Curtis was a hero of the abolition movement for his dissent in Dred Scott, yet in his memoirs he fully forgave Taney for that decision, which he called the lone flaw in an impeccable career, and praised his judicial ability as one of the strongest to ever occupy a seat on the court.
Is this screed about the "spot resolution"?
Taney 1832: "The African race in the United States even when free, are everywhere a degraded class, and exercise no political influence. The privileges they are allowed to enjoy, are accorded to them as a matter of kindness and benevolence rather than right."
Taney 1857: "[Negroes] 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 hey 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."
Of the latter statement, Fehrenbacher writes:
"{Taney's] statement that Negroes "had no rights which the white man was bound to respect" was part of his analysis of the state of public opinion at the time of the founding of the Republic. He did not declare that such a view still prevailed in 1857; indeed, on the contrary, he implied that public opinion had changed over the years.... Yet the Republican editors who flaunted Taney's explosive words without explaining their context, thereby distorting their literal meaning, were perhaps not entirely wrong in regarding the clause as a fair representation of the tenor of the entire decision. For if Negroes in 1789 had no rights that a white man were bound to respect, and if, as Taney maintained, they had acquired no rights since that time "within the meaning of the constitution." then their condition remained substantially unchanged, from the viewpoint of a federal judge. In 1857, they still had no rights under the Constitution that a white man was bound to respect."
[cr #1606] How very embarrassing it must have been to you all to have been so unceremoniously slam dunked. Not only did the moderators not pull my posts, they pulled the whole thread instead. It seems your "tight-fisted temper tantrums" did not account to a hill of beans.
[nc] Nothing you have said in your #1636 or elsewhere has responded to the substance of my #1594. I repeat the essence of it here in condensed form.
I have not read Mitchell, but the description in the Hamdi footnote is that the plantiff was a US citizen.
-- capitan_refugio, #1370, 09/18/2004
The provided description is not in a footnote to anything. It is not from any Supreme Court decision. It was written by a public defender attorney and runs from the bottom of page 24 through the beginning of page 25 within the Petitition for a Writ of Certiorari.
Bollman was not about habeas corpus....
-- capitan_refugio, #237, 08/29/2004
Eric M. Freedman in Habeas Corpus, Rethinking the Great Writ of Liberty, devotes his chapters 3, 4, and 5 exclusively to Ex Parte Bollman.
Lemmon v the People was a case which foreshadowed Dred Scott. The Taney Court overturned a New York State statute which immediately freed slaves brought into the state. The decision guaranteed "sojourn and transit" and transit rights to slave-owners through free states. It did not address, to my knowledge, the issue of residence.
-- capitan_refugio, #386, 03/31/2004
The Supreme Court case of Lemmon v. The People does not exist.
Thank you for chiming in> I refer you to the text of Amy Warwick (1862): "But chiefly, the terms of the President's proclamation instituting [67 U.S. 635, 641]...."The Supreme Court finds:
(1) The rebellion is an insurrection and not a war betwenn countries,
(2) The "so-called blockade" was not a blockade under international law, and (3) Closing the ports was a valid exercise of executive authority.
-- capitan_refugio, #649, 09/03/2004
On FINDLAW, bracketed comments in text of case [67 U.S. 635, 641] indicate this report starts at Volume 67, page 635 and you are at the beginning of page 641.
[nc] cr quotes are from pp. 640-642 of the Supreme Court Reporter.
The entirety of the quoted matter was from the Court Reporter's recitation of the Argument of Mr. Carlisle which runs from page 639 to 650. The Opinion of the Court by Mr. Justice Grier starts at page 665.
All of the findings attributed to the Court are argments of Mr. Carlisle. None was adopted by the Court.
| 635 | 639 | 640 | 641 | 650 | 665 | 682 | 699 |
[court reporter at p. 638] "The case of the Amy Warwick was argued by Mr. Dana, of Massachusetts, for Libellants...."
[court reporter at p. 639] "The Brilliante, by Mr. Eames, of Washington City, for Libellants, and by Mr. Carlisle, of Washington City, for Claimants."
[court reporter at p. 639] "One argument on each side is all that can be given. Those of Mr. Dana and Mr. Carlisle have been selected...."
[court reporter at p. 639] Begins presentation of argument by Mr. Carlisle.
[court reporter at p. 650] Ends presentation of argument by Mr. Carlisle.
[court reporter at p. 650] Begins presentation of argument by Mr. Dana.
[Opinion of the Court] Mr. Grier pp. 665 - 682.
[Dissenting Opinion] Mr. Nelson pp. 682 - 699.
[cr #1606] For a person who proclaims his hatred of Lincoln
I have not proclaimed any hatred of Lincoln, but disdain for the fabricated mythology that some have adopted, and the nonsensical and/or illogical apologies in defense thereof. In so doing, I quote extensively from Lerone Bennett, Jr., a Black historian and editor of Ebony magazine for about a half-century.
[cr #1606] his endorsement of legal slavery
I have not endorsed legal slavery. I have observed the historical fact that the Constitution recognized and protected the institution of slavery.
My #710 acts as a complete refutation of your unsupported allegation, "I'm a Yankee, native New Yorker, now residing in Arkansas. I do not mind talking the slavery issue. Slavery was wrong, it was always wrong, and never could be justified. It does not speak to the legal issue of secession. If secession was a legal right, it was no less a right whether its purpose was good, bad, or dumb."
Quote me endorsing legal slavery or please admit this is another of your smears and false accusations.
[cr #1606] your modus operandi is to smear and misrepresent
That is what I just documented you doing. Your allegation provides no documentation.
[cr #1606] You revel in quoting Hitler
Quote me quoting Hitler, or please admit this is just another of your smears and false accuations.
[cr #1606] You'll find in four years I have had exactly two pulled - neither for overt profanity.
The total text of your #1488 read "GFY". I am sure you intended it to mean "Good for you" and its was pulled in error.
[cr #1606] If you can not debate the issues, then I suggest you stay off of these threads.
I am debating the legal issues. You have been consistently losing that debate. You have thus resorted to the imaginary case, attributing argument of attorney to the Supreme Court, attributing argument by a public defender in a Petition to an opinion of the Supreme Court, and attributing comment from a dissenting opinion to the opinion of the Supreme Court, and denying the seminal case on habeas corpus was about habeas corpus. In arguing about the Supreme Court case of Scott v. Sandford, you provided quotes from Fehrenbacher pertaining only to the Missouri case of Scott v. Emerson.
If you cannot debate legal issues without misrepresenting what has been said by others as the opinion of the court, or opining upon non-existent court decisions, or opining about decisions you have not bothered to read, I would recommend you stay out of those legal discussions.
[cr #1606] You have chosen the loathsome task of defending the actions and the principles of the Confederacy.
I have chosen to debate the legal issues and whether secession was legal. Whether slavery was legal is not debatable. It was. However wrong and unpleasant that may be, it is historical fact. Whether slavery was right or wrong is not debatable. It was wrong. You only inject that issue as a diversion when you are losing the argument on the legality of secession.
As the book is not a Taney biography, but a history on the case, you should not expect the Curtis remarks to be included. However, Fehrenbacher does note Samuel Tayler, erd., Memoir of Roger Brooke Taney, LL.D., (1876) as recording that Curtis delivered "perhaps the most eloquent eulogy." Fehrenbacher also notes that "Curtis, who spent considerable time in wartime Washington arguing cases before the Supreme Court, was also an opponent of the Lincoln Administration. He denounced the Emancipation Proclamation and published a pamphlet [in 1862] accusing Lincoln of assuming dictatorial power." Curtis provides a good example of the phrase, "The enemy of my enemy is my friend."
Yes, he does seem to be having an effect of GOP, doesn't he? I noticed that you didn't feel the need to talk to GOPcapitalist about civility. But that IS what passes for civility among the southron contingent.
32. New York Times, Oct. 14, 1864. The Chicago Tribune said that Taney's "other relations to public and private life have been eminently useful and honorable." The New York Tribune of the same date declared: "He was the product of circumstances which (we trust) will mold the character of no future Chief Justice of the United States; but it were unjust to presume that he did not truly and earnestly seek the good of his country." Taney himself was never as generous in his judgment of Republican motives. In his private relations, however, the Chief Justice seldom allowed political feeling to aflfect his sense of propriety. The member of the Lincoln administration with the highest opinion of Taney was the only one in frequent contact with him, Attorney General Edward Bates, who called him "a model of a presiding officer; and the last specimen within my knowledge, of a graceful and polished old fashioned gentleman." Howard K. Beale, ed., The Diary of Edward Bates, 1859-1866, AHA Annual Report, 1930, IV, 418. Bates was the only member of the cabinet who went to Frederick, Md., for the funeral. Lincoln and three cabinet members attended the brief ceremony held in Washington. Taney's graciousness also won the friendship of the new Republican justices, particularly Samuel F. Miller, who reportedly declared: "Before the first term of my service in the Court had passed, I more than liked him; I loved him." Charles Fairman, Mr. Justice Miller and the Supreme Court, 1862-1890 (Cambridge, Mass., 1939), 52-53. In bar proceedings taking note of Taney's death, perhaps the most eloquent eulogy was delivered by Benjamin R. Curtis, with whom he had quarreled so bitterly in the aftermath of the Dred Scott decision. See Tyler, ed., Memoir of Taney, 509-16.
Source: Don E. Fehrenbacher, The Dred Scott Case, page 717, footnote 32.
The original citation for Taney's 1832 opinion concerning Negro rights is found in footnote 76 of Fehrenbacher's The Dred Scott Decision. It reads: FN 76. The opinion accompanies Taney's letter to Secretary of State Edward Livingston, May 28, 1832, Miscellaneous Letter, Department of State Papers, National Archives. The supplement accompanies Taney's letter to Livingston, Jun 9, 1832. See Carl B. Swisher, Roger B. Taney, New York, 1935), pp 151-159; Marvin Laurence Winitsky, "The Jurisprudence of Roger B. Taney," PhD dissertation, UCLA, 1973, pp 92-94. Says Fehrenbacher, "Thus Taney, in 1832, formulated the same harsh racial doctrine that he would proclaim from the bench twenty-five years later."
Source: Don E. Fehrenbacher, The Dred Scott Case, Oxford University Press, 1978.
[nc note: superscripted indicators of footnotes are changed to full-size bracketed bold-face numbers.]
[QUOTE]
[Page 70]Soon Roger B. Taney replaced Berrien as Jackson's attorney general. Further trouble with Britain, this time over a North Carolina Negro seamen law, elicited from him an opinion of some four thousand words, to which he added a long supplement twelve days later. Taney, unlike Wirt and Berrien, took up the subject of free American Negroes and concluded that they had no rights under the Constitution at all:
The African race in the United States even when free, are everywhere a degraded class, and exercise no political influence. The privileges they are allowed to enjoy, are accorded to them as a matter of kindness and benevolence rather than of right. They are the only class of persons who can be held as mere property, as slaves.... They were never regarded as a constituent portion of the sovereignty of any state. . . . They were not looked upon as citizens by the contracting parties who formed the Constitution. They were evidently not supposed to be included by the term citizens. And were not intended to be embraced in any of the provisions of that Constitution but those which point to them in terms not to be mistaken. [76]Thus Taney, in 1832, formulated the same harsh racial doctrine that he would proclaim from the bench twenty-five years later. But his opinion had no influence outside the little circle of men around Jackson, because for some reason it was never published along with other opinions of the attorney general. [77]
--------------------------------------------------------------------
FOOTNOTES:
[Page 616]
[76] The opinion accompanies Taney's letter to Secretary of State Edward Livingston, May 28, 1832, Miscellaneous Letter, Department of State Papers, National Archives. The supplement accompanies Taney's letter to Livingston, June 9, 1832. See Carl B. Swisher, Roger B. Taney, New York, 1935), pp 151-159; Marvin Laurence Winitsky, "The Jurisprudence of Roger B. Taney," PhD dissertation, UCLA, 1973, pp 92-94.
[77] Opinions of the attorneys general were first published in 1843 when Taney was chief justice. It appears that he either suppressed the 1832 opinion or perhaps had never filed it. See Swisher, Taney, 152.
CLOSE QUOTE
[capitan_refugio 1749 to 4ConservativeJustices]
The idea that Taney was personally opposed to slavery is a myth. As Fehrenbacher demonstrated, the Taney myth runs deep in the pro-Taney literature, but has little or no basis in fact. Fehrenbacher notes:"This legend of the antislavery Taney rests almost entirely upon two actions taken nearly 40 years before the Dred Scott decision. In 1818, he served as defense attorney for an abolitionist minister and in the process denounced slavery as an evil that must in time be "gradually wiped away." Beginning the same year, emancipated his own slaves to the number of at least eight. Whatever moral conviction may have encouraged these actions, it does not appear again in his public record or private correspondence. His attitude on the bench was consistently and solicitously proslavery. By 1857 he had become as fanatical in his determination to protect the institution as Garrison was in his determination to destroy it."
Source: Don E. Fehrenbacher, The Dred Scott Case, Oxford University Press, 1978.
[nc note: superscripted indicators of footnotes are changed to full-size bracketed bold-face numbers.]
[nc note: part quoted by capitan_refugio in #1749 appears in blue.
QUOTE
[Page 559]Yet it also seems possible that Taney's growing extremism in the late 1850s was primarily a response to ominous changes in the political environment -- notably the rise of the Know-Nothings, whom he regarded as ugly bigots, and the rise of the Republicans, whom he regarded as dangerous fanatics. What needs to be emphasized in any case is that his Dred Scott opinion was written with an emotional commitment so intense that it made perception and logic utterly subservient. The extraordinary cumulation of error, inconsistency, and misrepresentation, dispensed with such pontifical self-assurance, becomes more understandable with the realization that the opinion was essentially visceral in origin -- that law and history were distorted to serve a passionate purpose. Taney's real commitment, one must also emphasize, was not to slavery itself, for which he had no great affection, but rather to southern life and values, which seemed organically linked to the peculiar institution and unpreservable without it. He used the Dred Scott case to reinforce the institution of slavery at every possible point of attack, not because he had once been a slave- [Page 560] holder but because he remained, to the end of his life, a southern gentleman.*
[Bottom Page 560]
* At the same time, one must put aside the curious notion that Taney was at heart an antislavery man -- a notion that has a long history and retains surprising vitality. The Cincinnati Enquirer in 1857, condemning abusive attacks on the Chief Justice, declared: "Mr. Taney, personally, is opposed to slavery in principle and practice." Frank H. Hodder agreed in 1929. "Taney," he wrote, "was opposed to slavery. . . . The position that he took in the Dred Scott case was the result of a mistaken sense of duty and not of any partiality for slavery." Charles W. Smith, Jr., asserted in 1936 that Taney, like Jefferson, "believed slavery wrong and favored gradual emancipation." According to Walker Lewis, in a 1965 biography, "Slavery violated his conscience. His opposition to abolition was not because he wished to perpetuate slavery but because he believed the abolitionists misguided." In 1971, Robert M. Spector said of Taney: "From the standpoint of morality he hated slavery as much as any abolitionist." This legend of the antislavery Taney rests almost entirely upon two actions taken nearly forty years before the Dred Scott decision. In 1818, he served as defense attorney for an abolitionist minister and in the process denounced slavery as an evil that must in time be "gradually wiped away." Beginning the same year, Taney emancipated his own slaves to the number at least of eight. Whatever moral conviction may have encouraged these actions, it does not appear again in his public record or his private correspondence. His attitude on the bench was consistently and solicitously proslavery. By 1857 he had become as fanatical in his determination to protect the institution as Garrison was in his determination to destroy it. [19]
-----------------------------------------------
FOOTNOTE:
[Page 712]
[19] Cincinnati Enquirer, quoted in Charleston Courier, April 1, 1857; Frank H. Hodder, "Some Phases of the Dred Scott Case," MVHR, XVI (1929), 17; Charles W. Smith, Jr. Roger B. Taney, Jacksonian Jurist (Chapel Hill, N.C., 1936), 147; Lewis, Without Fear or Favor, 360; Robert M. Spector, "Lincoln and Taney: A Study in Constitutional Polarization," American Journal of Legal History, XV (1971), 212. On Taney's manumissions and defense of the abolitionist minister, see Swisher, Taney, 94-98; Lewis, Without Fear or Favor, 44, 76-79.
CLOSE QUOTE
Source: Don E. Fehrenbacher, The Dred Scott Case, Oxford University Press, 1978.
[nc note: superscripted indicators of footnotes are changed to full-size bracketed bold-face numbers.]
QUOTE
[Beginning on page 590]Likewise contributing to the rehabilitation of Taney was the publication in 1910 of the Catron and Grier letters informing Buchanan that the two dissenting justices had forced the Court majority to undertake a broad decision instead of the narrow one originally planned. As a consequence, much of the blame for the resulting judicial disaster could be shifted from Taney to Curtis and McLean. Frank H. Hodder thought that Curtis was the worst offender of the three, but McLean's notorious presidential ambitions made him the more obvious culprit. In 1927, Beveridge confided to Hodder: "Justice Holmes told me (but this is confidential, and you cannot use it unless you find it out some other way) that the tradition in the Court is that McLean stirred up the whole mess and that Curtis probably would not have peeped if McLean had not ripped and torn around so much and blew off so loudly." [72]
The work of reconstructing Taney's judicial reputation reached its climax during the 1930s. In September 1931, Chief Justice Charles Evans Hughes, son of an abolitionist minister, unveiled a bust of Taney at Frederick, Maryland, and praised him lavishly. It was unfortunate, Hughes said, that the estimate of Taney's career should have been so largely influenced by the Dred Scott decision, rather than by the whole of his "arduous service nobly rendered" and by his important contributions in many of the major categories of case law. Viewing the Dred Scott decision as a well-intentioned mistake, Hughes acknowledged that it had seriously impaired the prestige of the Court, but "chiefly because of the unbridled criticism induced by the temper of the times." Taney, he concluded, was a man of "invincible spirit" and a "great Chief Justice." [73]
Four years later, Carl B. Swisher published his sympathetic but not uncritical biography of Taney in which the Dred Scott decision, as one event in a long life and long judicial career, took up only one of twenty-seven chapters. Swisher did not encourage the myth that Taney was antislavery, and neither did he deny that a sectional pur- [Page 591] pose animated the latter's Dred Scott opinion. "First and foremost," he wrote, one must remember Taney's "devotion to the South . . . and his belief that, if the trend of events continued, the South was doomed/' Swisher also recognized that Taney was at heart a secessionist who nevertheless considered secession impractical because of chronic southern disunity. Instead, the South's best hope seemed to lie in discrediting the antislavery crusade and thereby relieving the pressure of sectional conflict. Thus Taney and his southern colleagues on the Court "planned to defeat the abolitionists and avoid disaster." The purpose of the decision, in short, was to help protect the South and its culture from northern subjugation. [74]
The Swisher biography was followed the next year, 1936, by a laudatory study of Taney's jurisprudence. Charles W. Smith, Jr., in his Roger B. Taney: Jacksonian Jurist, declared that Taney "regarded slavery as an evil institution, but one which would have to be abolished gradually." On the bench, said Smith, Taney generally acted impartially in dealing with slavery. The Dred Scott opinion furnished evidence that Taney "was a firm believer in individual rights," and from the standpoint of technique it was "one of the best that he ever wrote." Admittedly a political mistake, it was nevertheless an effort "to save the Union by protecting property rights guaranteed in the Constitution." [75]
The Swisher and Smith books were published at a time of constitutional crisis over the Supreme Court's repeated invalidation of New Deal legislation. To some critics of the Court, Taney appeared as an attractive historical figure (setting aside the Dred Scott decision, of course) because of his association with the doctrine of judicial self-restraint. This was especially true in the case of Felix Frankfurter, the Harvard law professor who would soon be appointed to the "Roosevelt Court." During the presidential campaign of 1936, Frankfurter delivered a series of lectures later published as The Commerce Clause Under Marshall, Taney and Waite. He demonstrated that Taney, while disagreeing with Marshall in certain important respects, did not undertake "a wholesale reversal of Marshall's doctrines." He denied that Taney was an "agrarian" or a "localist" or a proslavery man "in any invidious sense." Eventually, Frankfurter hoped, it would be- [Page 592] come "intellectually disreputable" to see Taney predominantly as the judicial defender of slavery. "We do know," he said, "that Taney himself did not favor 'the peculiar institution/ and the probabilities are overwhelming that his deepest desire was to avoid disunion." Then, in an astonishing contribution to Dred Scott folklore, he continued:
He [Taney] would probably have explained his policy on the Court in language not dissimilar to that of Lincoln's famous letter to Horace Greeley: "My paramount object in this struggle is to save the Union and is not either to save or to destroy slavery."Frankfurter closed his lecture on Taney by placing the latter "second only to Marshall in the constitutional history of our country." [76]
Other scholars besides Hughes, Swisher, Smith, and Frankfurter contributed to the highly favorable estimate of Taney's career that was well established as historical orthodoxy by the end of the 1930s. [77] Later, as a consequence of the great revolution in civil rights, the abolitionist point of view regained respectability, and extenuation of the Dred Scott decision went out of fashion. [78] Yet Taney's reputation did not suffer severely, even though the climate of opinion had turned hostile again. In 1972, the American Bar Association Journal published the results of a poll in which sixty-five professors of law, political science, and history were asked to rate the performances of all members of the Supreme Court since its establishment in 1789. Taney's name appeared in the top category of twelve "great" justices, only four of whom served before 1900. One of the responding professors, a counsel for the American Civil Liberties Union, acknowledged that only with considerable hesitation had he voted to call the author of the Dred Scott decision a great jurist. [79]
Thus the twentieth-century rehabilitation of Roger B. Taney remains more or less intact. It rests primarily upon a proper appreciation of his entire judicial career, but it also draws strength from several dubious historical traditions that tend to mitigate his responsibility for the "disaster" of Dred Scott. These include repeated assertions that Taney was privately opposed to slavery; that the two dissenting justices forced the Court majority to render a broad decision; that Taney's Dred Scott opinion was an "aberration" from his ha- [Page 593] bitual devotion to judicial self-restraint; and that the worst consequences of Dred Scott were produced, not so much by the substance of the decision itself, as by the violent and unjust Republican attack upon it.
--------------------------------------------------------
FOOTNOTES:
[Page 722]
[72] Moore, ed., Works of Buchanan, X, 106-7; Frank H. Hodder, "Some Phases of the Dred Scott Case," MVHR, XVI (1929), 22; Beveridge to Hodder, Feb. 22, 1927, Beveridge Papers, MDLC.
[73] Charles Evans Hughes, "Roger Brooke Taney," American Bar Association Journal, XVII (1931), 785-90. Hughes also spoke of the "violent and malignant attack upon the decision."
[74] Swisher, Taney, 495-523, especially 503-5.
[75] Charles W. Smith, Jr., Roger B. Taney: Jacksonian Jurist (Chapel Hill, N.C., 1936), 147, 154, 155-76, 210.
[76] Felix Frankfurter, The Commerce Clause Under Marshall, Taney and Waite (Chapel Hill, N.C., 1937; Chicago, 1964), 49, 66-68, 73. Frankfurter first published his lecture on Taney in the Harvard Law Review, XLIX (1936), 1286-1302. As authority for his statements about Taney's attitude toward slavery, he cited the Swisher biography, but he appears not to have read it very carefully. In 1953, he named Marshall, Taney, and Hughes as the three greatest chief justices. Philip Elman, ed., Of Law and Men: Papers and Addresses of Felix Frankfurter, 1939-56 (New York, 1956), 113.
[77] For example, Benjamin Fletcher Wright, Jr., The Contract Clause of the Constitution (Cambridge, Mass., 1938), 62-88, 245-46; Ben W. Palmer, Marshall and Taney, Statesmen of the Law (Minneapolis, 1939), 145-275. Wright argued that there was continuity between Marshall and Taney in interpretation of the contract clause. Palmer asked "Which was the greater judge, John Marshall or Roger Brooke Taney?" and returned an equivocal answer (256, 271).
[78] Marvin Laurence Winitsky, "The Jurisprudence of Roger B. Taney," Ph.D. dissertation, UCLA, 1973, is generally an evenhanded study but more critical of Taney's slavery decisions. See also Arthur Bestor, "State Sovereignty and Slavery: A Reinterpretation of Proslavery Constitutional Doctrine, 1846-1860," Journal of the Illinois State Historical Society, LIV (1961), 117-SO; William M. Wiecek, "Slavery and Abolition Before the United States Supreme Court, 1820-1860," JAH, LXV (1978), 34-59.
[79] Albert P. Blaustein and Roy M. Mersky, "Rating Supreme Court Justices," American Bar Association Journal, LVIII (1972), 1183-89. His other three nineteenth-century justices rated "great" were John Marshall, Joseph Story, and John Marshall Harlan.
CLOSE QUOTE
As I explained before, I was addressing everyone. Don't start trying to bait me. GOP has plenty of patience, but some of you guys tend to rub one raw. He is a gentleman, but everyone has their limits.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.