2015, July 6 | Monday 6:52 pm

by Peter Samuel

It is time to remove from the park in front of City Hall the bust of Roger Brooke Taney. His presence there suggests that we as a community honor the man. We don’t honor, surely, the author of the monstrous Supreme Court Dred Scott decision of 1857 which ruled that no “negro” could be regarded as a citizen of any state or numbered among its “people or citizens.” Scott by reason of his “African race… is not a citizen,” Chief Justice Taney wrote.

Taney’s position represented a defense of  “the most extreme pro-slavery position” in the country, according to TaneyInFrongCityHallhistorians David Brian Davis & Steven Mintz (“The Boisterous Sea of Liberty,” p460)

Taney enunciated a racial supremacist view that went even beyond the notion of ‘negro’ inferiority to deny the very humanity of ‘negroes.’ Blacks he considered “a subordinate and inferior class of beings” and  “an article of property” of whites, he wrote for the majority of the Supreme Court in the infamous Dred Scott decision 158 years ago.

In Dred Scott Taney’s ruling was a flagrant violation of the Declaration of Independence’s splendid assertion 81 years earlier that “…all men are created equal, that they are endowed by their Creator with certain unalienable Rights…”

If african-americans were to be regarded by the courts as mere “property” then they were defenseless against thievery, violence and other assault. Taney wrote that blacks had “”had no rights which the white man was bound to respect…” Even free blacks apparently.

 Rotten law too

Taney’s decision was rotten law in the most base terms of dishonest fabrication.

He wrote: “The Constitution of the United States recogni(z)es slaves as property…” (IV 3)

Taney had no basis for that statement because the Constitution nowhere even addresses slavery. It was deliberately evasive on slavery as a way of achieving compromise between abolitionists and slavers on the issues of union during the revolutionary war. Slavery as an issue had to be set aside in order to form a national government to secure American independence from Britain. No constitution would ever have been agreed, without avoiding the issue of slavery.

bustangledTaney also wrote absurdly: “It is true, every person, and every class and description of persons, who were at the time of the adoption of the Constitution recognized as citizens in the several States, became also citizens or this new political body; but none other…”

None other? If this were true then immigrants arriving subsequent to June 1788 could never become citizens, nor even children of citizens. Taney’s absurd proposition if adhered to would have seen US citizenship end with the passing of the generation present in 1788.

Taney’s Dred Scott decision was also bad law procedurally in addressing issues that hadn’t even arisen in the case. It outlawed the Congress’ Missouri Compromise of 1820, an important attempt to limit the spread of slavery while leaving alone established slaveholding in the south.

Dissenting judges excoriated Taney and his supporters on the bench for disregarding established judicial practice in making rulings beyond the issues raised in Dred Scott’s case. Dissenting Judge Benjamin Curtis called Taney’s pronouncement on the Missouri Compromise law “extrajudicial.” Curtis cited details in five states where free blacks had full citizenship rights contrary to Taney’s sweeping generalization that nowhere were blacks’ rights recognized.

Justice Curtis lamented: “(When) fixed rules which govern the interpretation of laws [are] abandoned, and the theoretical opinions of individuals are allowed to control (the Constitution’s meaning) we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”

Historian James Simon has written: “Taney’s convoluted Dred Scott opinion became an easy target for ridicule and attack. It was savaged by scholars for its strained reasoning and meager documentation. And it was viewed by the majority of Americans, primarily in the North, as a partisan and unconscionable defense of slavery. The H&DScott2617opinion was all the more shocking because Taney, over the two decades that he had served as Chief Justice, converted legions of skeptics into true believers in his fairness, pragmatism, and judgment. But in his Dred Scott opinion, where careful scholarship and political wisdom were desperately needed, he failed miserably.”

(James Simon, Lincoln and Chief Justice Taney: Slavery, Secession, and the President’s War Powers, Simon & Schuster Lincoln Library p125)

Giving aid and comfort to the rebellion

The Dred Scott ruling gave legitimacy to southern resistance to limits on slavery, and to secession itself. Some historians say Dred Scott was so provocative and incendiary a ruling by the high court it provoked the Civil War – the costliest and most divisive war in American history.

Taney’s court appeared to be saying that slavery could not be outlawed or restricted within the United States by any legislature, state or federal, now or at any future time.  So quite apart from its immorality the Dred Scott opinion was an arrogant act of judicial imperialism, such a mauling of the Constitution that it challenged the whole structure of democratic representative government.

Taney’s ruling generated a strong backlash, because most Americans at the time considered slavery immoral if unfortunately still necessary in the south with its heavy dependence on plantation crops – tobacco and cotton. The general hope at the time was that slavery could be contained and gradually phased out. That was the logic of the ban on slave trade, and of barring slavery in new states admitted to the union.

Suddenly Taney’s court was denying the right of northern and western states to ban slavery, threatening to institutionalize the hated system throughout the country.

Historian James Simon summarizes: “In Dred Scott, Taney abandoned the careful, pragmatic approach to constitutional problems that had been the hallmark of his early judicial tenure in favor of a rigid march to his doctrinaire conclusions. He expected that his opinion would be the final constitutional word on the subject of slavery and that, as a result, the warring factions in North and South would engage in more productive pursuits. He was, of course, wrong, and his tragic miscalculation cost the nation and the Supreme Court dearly.” (p270)

Helped Lincoln get in

Largely in response to Dred Scott the new Republican Party made opposition to the Taney ruling a central issue in national politics, and the Democrats split along sectional lines on the issue of slavery. Lincoln in 1858 AbeL&SDouglaswon national acclaim for his performance in seven public debates on slavery with Stephen A Douglas a long-serving Republican senator. This helped Lincoln win the Republican nomination. He campaigned for the presidency in large part by deploring the Dred Scott decision in speeches all around the country. Slavery was he said a “vast moral evil.”

Taney’s Dred Scott ruling, Lincoln said, was part of a conspiratorial and sectional effort to frustrate the framers’ aspirations to move away from the founding father’s ideal of a nation granting rights to all. The slave interest, Lincoln said belittled the founding fathers’ work: “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.”

Respect for the Taney Supreme Court plummeted to the extent that it was boycotted by abolitionists refusing to recognize its legitimacy.

In an important speech at Manhattan’s Cooper Union in February 1860 Lincoln set the tone for his presidential campaign. He laid out the profound errors of Taney in Dred Scott. Summarized by historian James Simon: “Lincoln provided fresh proof that the majority of the founding fathers had disapproved of slavery and authorized the national legislature to prohibit it in the territories. Drawing on his research of the records of the Constitutional Convention and debates in the early Congresses, Lincoln demonstrated that at least twenty-one of the thirty-nine men who signed the Constitution voted to outlaw slavery, either in support of the Northwest Ordinance, its ratification in the first Congress, or subsequent legislation, such as the Missouri Compromise. By citing the historical record, Lincoln emphasized that he was a conservative who wanted to preserve, not uproot, the nation’s political principles.” (p167 of “Lincoln and Chief Justice Taney.)PicTaney

In his Inaugural address as president March 4 1861 Lincoln denounced the supreme court’s claim to the final say on slavery with Taney sitting nearby to conduct his oath of office. Said Lincoln: “… if the policy of the government on vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court… the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal.” (James Simon p175)

Between Lincoln’s election when South Carolina and other states announced their secession and his March 1861 inauguration the country was close to civil war with the south’s blockade of Fort Sumpter and their demand that it be surrendered. Five weeks into his presidency on April 12 the confederates in Charleston bombarded the US fort with 4,000 rounds of mortar and cannon, and the war was on.

Lincoln began to govern by proclamation to raise an army and suspended habeas corpus to arrest secessionist activists in Maryland. John Merryman a major landowner in Cockeysville and state legislator was arrested May 25 and incarcerated in Fort McHenry accused of involvement in burning railroad bridges rail lines and cutting cable communications in northern Maryland to hamper the capital’s reinforcement by Massachusetts troops (they had to be brought in by sea.) Merryman’s lawyers drafted a writ of habeas corpus demanding he be turned over to a civilian court. Taney immediately set himself up as a circuit court in  Baltimore and signed the writ ordering the commander of Ft McHenry to turnover his prisoner. The commander declined to surrender Merryman or appear before Taney.

Taney read a prepared opinion that the President had no constitutional or legal right to suspend habeas corpus or command any officer to suspend it. He tried to serve a writ on the Ft McHenry commander to appear before him, but Taney’s marshalls were turned away at the gate. Taney said if had the Ft McHenry commander in his court he’s imprison him and levy stiff fines for contempt of court.

Historian Simon observes that Taney’s opinion “reduced the President’s powers to Lillyputian proportions.” It was in strong contrast to Taney’s attribution of sweeping powers to President Jackson in backing him in his dispute with the US Bank. Taney had backed a Rhode Island governor in declaring martial law in a civil disorder – a situation far less dire than Lincoln faced early in his term.

Frontal2616Simon: “No wartime U.S. president has ever accepted the impotent constitutional role that Taney assigned to Lincoln. (p193.)”

At no point in his handling of the Merryman case did Taney recognize that the US was at war, giving his opinions a “surreal quality,” Simon says. Taney released his opinions to the press without waiting to see if President Lincoln or his attorney general had a rejoinder.

Behind enemy lines

Other southern sympathizers in Washington resigned their positions but Taney was determined to stay and use his judicial position at the Supreme Court to challenge President Lincoln at every step. Lincoln ignored him until July when in an address to a special session of Congress he referred to Taney’s habeas corpus argument.

Lincoln: “It cannot be believed the framers of the instrument intended that in every case, the danger (of rebellion) should run its course until Congress could be called together; the very assembling of which might be prevented, as was intended in this case, by the rebellion.”

In such an emergency the president must have the authority to act, Lincoln said.

“(A) re all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?”

The Congress in that summer session officially ratified Lincoln’s use of emergency wartime powers in a rebuff to Taney.  The US naval blockade of southern ports was another avenue for Taney to hamper the war effort.  The south he believed had the right to secede and should have been allowed to leave the union.

Taney wrote an opinion that the US Government had no authority to issue bank notes unsecured by specie and later he wrote an opinion contesting the right of the government to conscript recruits to the army – all this work in preparation for cases in which he might be able to hobble the Lincoln administration. Such cases never came before the Taney court.

Naval prizes 

In 1863 the naval blockade of the south did produce a supreme court case  over ships, cargoes and crews seized in attempts to run the Union blockade.  (These were called the Prizes’ case from the term ‘prize of war.’) A Supreme Court ruling that the naval seizures were illegal would have been a severe blow to Lincoln’s war effort.

But by that time Lincoln had managed to appoint three anti-Taney judges to the nine member high court. One southern judge Robert Grier who had voted with Taney on Dred Scott deserted him to give Lincoln a 5/4 Supreme Court win on the blockade.

The wartime Lincoln administration took strongarm action against southern supporters in Baltimore – including the mayor, police chief, newspapermen, a state judge, a clergyman and others. A number of the imprisonments were based on misinformation. But after the event the Congress ratified  Lincoln’s orders as necessary in the emergency of the civil war.

 Death

Taney aged 87 died of a long festering intestinal problem at his rented apartment in Indiana Av Washington DC October 1864 in the final weeks of the Civil War. There was a funeral service for him in DC, and most of Lincoln’s cabinet and leading congressmen stayed away. Lincoln himself never acknowledged Taney’s death. Only AG Edward Bates from Lincoln’s Cabinet paid his respects, traveling to the burial in St John’s cemetery in Frederick.

When the Congress dealt with a proposal in 1865 to appropriate funds for a  bust of Taney for the Supreme Court Massachusetts Senator Charles Sumner (1811-1874) said: “(Taney) has done evil during life, he must not be complimented in marble…. An emancipated country will fasten upon him [Taney] the stigma which he deserves… He administered justice (to the) last wickedly, and degraded the judiciary of the country, and degraded the age.”

What breathtaking arrogance, Taney’s notion that his word on slavery would be the last word. And what an appalling assault on self-government by the people’s elected representatives Taney’s rulings represented, an intolerable assault on the Constitution itself. Like a would-be emperor Taney abandoned the judiciary’s expected reliance on laws, precedent, facts and reason in an attempt, a pathetic attempt, to overrule President Lincoln and the US Congress and rule by judicial decree. The complicated and vexing issues of slavery and the conduct of the war required an exceptional degree of wise determined leadership by the president and the congress, elected by the people to deal with the crisis. After his emperor act in Dred Scott fell flat Taney turned confederate saboteur for the period of the civil war.

His claim to fame in Frederick

Roger Taney settled in Frederick around 1801 at age 24. He was born and raised on a large family tobacco plantation on the Patuxent River in Calvert County, attended Dickinson College in Carlisle PA, and clerked for a judge in Annapolis. In Frederick he tombdeveloped a law practice, became a director of the State Bank branch, and married Anne Key sister of Francis Scott Key. From Frederick he got into politics being elected as a state senator in 1816 and staying in that role through 1821. He left Frederick in 1823 to take his  law practice to Baltimore.

In 1824 he threw himself into Andrew Jackson’s unsuccessful first campaign for US President lost to against John Quincy Adams. In 1827 Taney became Maryland Attorney General, resigning in 1831 to become Jackson’s US secretary for war. He was nominated by Jackson for Secretary of the Treasury but rejected the Senate.  He returned to private law practice.

Jackson nominated him to the Supreme Court and the first time he was rejected by the Senate. But after CJ Marshall died in a coach crash Jackson nominated him to be Marshall’s replacement as chief justice. And this time got Senate support. Taney held the position 28 years – until his death in the fall of 1864.

The bust of Taney was the work of the late Joseph W Urner, who a City official tells us was a ‘wonderful gentleman.” And Urner also produced the nearby bust of Thomas Johnson. The two busts are dated 1931. At that time the building behind was the Frederick County Court House. It only became City Hall in 1986 four years after the present Court House was opened at 100W Patrick.

The City seems to have simply inherited the memorials from the county court system. The City doesn’t seem to have ever made an affirmative decision to place Taney in front of City Hall. It inherited him.

 A Fredericktonian?

So how much of a Fredericktonian was Taney? Not much in background. Frederick was settled mostly by German and other small farmers who worked their own land and had little in common with the aristocratic British plantation life that produced Taney. But Taney did develop a successful law practice in Frederick and was sent by local 121SBentzvoters to represent them in the state senate. So he must have gained a following here. He earned his fame – and his infamy – after he left Frederick, living in Baltimore and Washington DC. He spent only about a quarter of his life here – 22 of 87 years. He apparently chose Frederick to be buried here, so he must have loved the place. Or perhaps a burial was cheaper here? His tomb is in the St Johns cemetery on East 3rd St.

There are three Taney memorials outside Frederick – a bust at the US Capitol with busts of all the chief justices, a second outside the State House in Annapolis, the third in Mt Vernon Place in Baltimore.

Giving a strong Confederate partisan like Taney place of honor at City Hall is an historical distortion. Frederick and Maryland of course were divided but Union supporters heavily outnumbered Confederates.  And that balance of pro-Union sentiment was reflected in Maryland’s staying within the Union despite having slaves.

James Loewen, a University of Vermont professor (Washington Post July 1) notes that 24,000 Marylanders joined the Confederate forces compared to 63,000 who joined the US forces. Confederate general Robert E Lee got a cold reception from the populace in Frederick and other western Maryland towns, gaining few recruits and little by way of supplies willingly provided. Confederate general Jubal Early threatened to burn Frederick to the ground, he received such a hostile reception. He demanded a ransom of $200,000 to get supplies. Union soldiers were much more enthusiastically received, Loewen writes.

The placement of the confederate Taney in a position of prominence at City Hall falsifies our history, and tarnishes the memory of the predominantly pro-Union people of Civil War Frederick.

Why not memorialize some major Frederick City figures in front of City Hall – people like Daniel Dulany the developer who bought 7,000 acres here and laid out the City grid in 1745, some mayors and other civic leaders, and major local figures.

Taney, the rogue judge of Washington DC has no rightful place at the entry to City Hall. His bust should be moved, either to the Taney House at 121 S Bentz, to the forecourt of the county courthouse, or placed next to  his tomb in the St Johns Cemetery.

http://www.dcmemorials.com/index_indiv0006812.htm

- editor 2015-07-06

 

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