successor, a New York journal sputtered: "The pure
ermine of the Supreme Court is sullied by the appointment
of that political hack, Roger B. Taney." Daniel
Webster confided, "Judge Story . . . thinks the
Supreme Court is gone and I think so too."
The Senate debated the nomination for almost three months.
in Maryland in 1777, Taney attended Dickinson College,
read law, and plunged into Federalist politics. While
other lawyers took pride in oratory, he spoke simply
in low tones that convinced juries.
freedom of speech, Taney won acquittal in 1819 for a
Methodist preacher whose sermon on national sins provoked
the charge of trying to stir up slave rebellion.
of the Bank of the United States, Taney campaigned for
Andrew Jackson. In 1831 President Jackson wrote, "I
have appointed mr Tauney atto. Genl." (His spelling
gives the right pronunciation.) Taney supplied legal
weapons in Jacksons war with the Bank, when passion
ran so high that Vice President Martin Van Buren wore
pistols to preside in the Senate.
over the Supreme Court for the first time, in January
1837, Taney wore plain democratic trousers, not knee
breeches, under his robe. The Court was entering a new
era. A law passed in March added two new judicial circuits
in the southwest and two Associates Justices. The Court
became unmistakably Jacksonian; conservatives dreaded
what it might do to property.
property survived. Its rights were "sacredly guarded,"
Taney wrote in the Charles River Bridge case,
but "we must not forget that the community also
have rights, and that the happiness and well being of
every citizen depends on their faithful preservation."
He interpreted corporation charters more strictly, state
powers more generously, than Marshall had.
Charles Bridge linking Boston with Cambridge,
Massachusetts became subject of a landmark case
establishing modern contract law ~
advertising a reward for runaway slaves ~
a new agitation over human rights was growing. If it
went on, wrote a Georgia planter, "we will be compelled
to arm our Militia and shoot down our property in the
field . . . tell the agitators we had rather fight them
than our own negroes, and that we will do it too. .
the United States and Mexico went to war. A suit filed
in a Missouri court by a Negro named Dred Scott went
unnoticed. Twelve years earlier, John Emerson, an Army
surgeon, had taken his slave Scott from Missouri to
Illinois, where the Northwest Ordinance and state law
forbade slavery. Then he had taken Scott to Fort Snelling,
a frontier Army post in territory where the Missouri
Compromise banned slavery forever. In 1838 he had taken
Scott back to Missouri. Emerson died, and Scott sued
the widow, claiming that this sojourn on free soil had
made him a free man. In 1850 the Missouri court declared
Emerson appealed. The states highest court ruled
in 1852 that, free or not on free soil, Scott became
a slave under state law when he went back to St. Louis.
was becoming a test case. To get it into a federal courtbecause
federal courts have jurisdiction in suits between citizens
of different statestitle to Scott passed to Mrs.
Emersons brother, John F. A. Sanford of New York
(misspelled "Sandford" in the records).
Missouri citizenship, Scott sued Sanford for his freedom
in the federal court in St. Louis. Sanfords lawyers
argued that Scott could not be a citizen because he
was a slave and a Negro. The court ruled against Scott
on May 15, 1854.
passed the Kansas-Nebraska Act two weeks later, opening
areas of the West to slavery where it had been banned
by the Missouri Compromise. Furious northerners burned
its author, Stephen A. Douglas, in effigy. On July 4,
abolitionist William Lloyd Garrison publicly burned
a copy of the Constitution, crying, "So perish
all compromises with tyranny."
broke out in Kansas and made the expansion of slavery
the issue in the 1856 Presidential campaign, won by
James Buchanan. The Supreme Court heard argument in
Dred Scott. v. Sandford in February 1856,
reached the end of its term, then heard argument again
the whole country had heard of Dred Scott. "The
Court, in trying this case, is itself on trial,"
said the New York Courier.
1857, a majority of the Justices agreed to follow precedent
and say that the ruling of the highest state court was
finalthat Scott was a slave under state law. Such
a narrow finding would leave unresolved two dangerously
controversial issues: Whether or not a free Negro might
be a citizen of the United States; and whether or not
the 1820 Missouri Compromise was constitutional.
it was learned that two dissenting Justices planned
to argue that Congress in fact had the power to regulate
slavery in the territories, that under the Missouri
Compromise Scott was a free man and a citizen, the majority
decided to enlarge the scope of the decision and deny
the power of Congress. Some members hoped the Courts
opinion would resolve the question, win acceptance,
and possibly save the Union.
Justice Taney swears in President Buchanan, 1857
President James Buchanan may have shared that hope;
in his Inaugural Address on March 4, he promised that
"in common with all good citizens" he would
"cheerfully submit" to the Courts decision.
days later the Justices began to deliver eight separate
opinions. The majority ruled that Scott was still a
slave. Three, including Taney, said no Negro, even if
free, could hold citizenship in the United States.
for the first time since 1803, the Court held an Act
of Congress null and void. Under the Constitution, it
announced, Congress had no power to limit the expansion
of slavery by law, as the Missouri Compromise of 1820
that the decision would temper the confrontation were
shattered by attacks on the Court from the abolitionist
press and antislavery leadersattacks that have
never been surpassed in bitterness. Almost unnoticed,
Scotts owner set him free. Before the case was
decided, Sanford had gone insane; before the slavery
question was settled, more than 600,000 Americans would
lose their lives in civil war.
we ever had any peace on this slavery question?"
asked Abraham Lincoln. The Illinois crowd yelled "No!"
It was 1858; Lincoln was challenging Stephen A. Douglas
for a Senate seat challenging the Supreme Courts
ruling on slavery.
defended the decision in Dred Scotts case as the
pronouncement of "the highest tribunal on earth,"
in spite of his own objections to it. "From that
decision there is no appeal this side of Heaven,"
decision settles one case, retorted Lincoln; it does
not even settle the law, still less the future of the
won the Senate seat; in 1860 he lost the race for the
Presidency, and the Republicans came to power with Lincoln.
Justice Taney administered the oath of office to Lincoln
on March 4, 1861, and heard him disclaim "any assault
upon the Court." But Lincoln warned solemnly: "if
the policy of the Government, upon vital questions affecting
the whole people, is to be irrevocably fixed by decisions
of the Supreme Court, the instant they are made, in
ordinary litigation . . . the people will have ceased
to be their own rulers. . . ."
day the first banner of the Confederate States of America
flew over the statehouse at Montgomery, Alabama.
divided the Supreme Court. Justice John A. Campbell,
who thought disunion wrong, resigned and went sadly
home to Alabama. Justice James Moore Wayne of Georgia,
last survivor of Marshalls Court, remained; until
his death in 1867, he voted to sustain all the war measures
the Court passed judgment on.
part of Taneys circuit, many favored the Union,
some the South. Washingtons only railroad to the
north ran through Baltimore, where an angry crowd mobbed
troops hurrying to defend the capital. Lincoln told
the Army to suspend the writ of habeas corpus and establish
martial rule, if necessary, to keep Maryland safe.
military jailed citizens on mere suspicion; troops arrested
John Merryman for taking part in the Baltimore riot
and blowing up railroad bridges. Locked up in Fort McHenry,
he applied for a writ of habeas corpusa court
order for proof that a prisoner is lawfully confined.
in "Rebellion or Invasion" when "the
public safety may require it" may the privilege
of habeas corpus be suspended, says the Constitution.
Taney Court ~
Court of the United States
Unionists guard the provost marshal's office against
Southern sympathizers during the Baltimore Riots,
to Baltimore, Chief Justice Taney issued a writ to Gen.
George Cadwalader: Bring Merryman to court and explain
his arrest. The general sent a letterhe had to
consult the President. Taney ordered a marshal to seize
the general; but a sentry barred the marshal from Fort
McHenry. The Chief Justice challenged the Presidents
right to take legislative and judicial power, calling
on him to uphold the law and the courts.
did not reply; Congress upheld him. But when the emergency
had passed, the government quietly brought Merrymans
case to a federal court; later still, it quietly let
him go free.
and death left three seats vacant at the Supreme Court.
Lincoln appointed Noah H. Swayne of Ohio, Samuel F.
Miller of Iowa, and his old friend from Illinois, David
Davis. But no one knew what the Court would do when
it heard the Prize Cases in 1863.
calling Congress into special session, Lincoln had authorized
martial rule in Maryland, called for volunteers, pledged
government credit for huge sums, and proclaimed a blockade
of southern ports. To meet the crisis of war, the President
swept into the realm of legislative power like an invading
general. A legal battle over four merchant ships seized
under Lincolns blockade orders tested his actions
before the Supreme Court.
owners brought suit for the vessels and cargo, arguing
that war alone warrants a blockade and only Congress
may declare war; they denied that Lincolns emergency
powers had any reality in constitutional law.
Court upheld the blockade as a legal war measure, England
and France might recognize the Confederacy; if it did
not, the government would have to pay huge damages for
captured ships, and other war measures would be in question.
Either decision would endanger the Union.
Robert C. Grier spoke for himself, Wayne, and Lincolns
three appointees: The President had to meet the war
as "it presented itself, without waiting for Congress
to baptize it with a name"; and rebellion did not
make the South a sovereign nation. Four dissenters said
the conflict was the Presidents "personal
war" until Congress recognized the insurrection
on July 13, 1861. But the prairie lawyer had won his
Justice Taney died, aged 87, in October 1864. Lincolns
Attorney General Edward Bates wrote that his "great
error" in the Dred Scott case should not forever
"tarnish his otherwise well earned fame."
And not long after Taneys death, victory for the
Union brought vindication of his defiant stand for the
rule of law.