Circa1865

What follows is an abridgment of an article written by a descendant of Chief Justice Taney to clarify the legal question presented and facts considered. Taney was 12 years old when Washington died and lived long enough to see the Constitution overthrown by military force. It is said that his arrest was ordered for defying Lincoln’s suspension of habeas corpus.

Chief Justice Taney and Dred Scott

Chief Justice Roger B. Taney (pronounced “tawney”), 1777-1864, is mostly known for his decision in the Dred Scott v. Sanford case in 1857. Largely forgotten is his 30 years on the bench of the Supreme Court, and his steadfast understanding that the Constitution is a compact among sovereign States. In his view, most matters of importance were the domain of States, not the federal government, and the Court was to interpret the Constitution according to the original constitutional meaning when it was first adopted.

The primary question the Court was to decide in the Dred Scott case was whether black people in the United States were “citizens” of the United States. It must be recalled that in the antebellum United States people were first citizens of the individual States, and by virtue of that, the United States.

Taney’s Court was to determine whether people of African descent were actual members of the American political community under the original intent and meaning of the Constitution. His study and understanding reflected that the United States in 1789 were primarily white, Anglo-Saxon people and black people were not part of what was an original political creation of Europeans. The racial viewpoint of the latter toward African people was primary in his consideration.

He and his Court saw that in all States, North and South, laws restricted relations between the white and black races because it was widely believed that “a perpetual and impassable barrier was intended to be erected between the white and black race.” Clearly, this is in general an accurate assessment of 17^th and 18^th century colonial law.

The Court also explored whether the Declaration of Independence proposition that “all men are created equal” altered the legal and social status of black people in America. Taney argued that if understood in its proper historical context where blacks and whites occupied different legal and social spheres, “it is too clear that black people were not intended to be included and formed no part of the people who framed and adopted this Declaration” in 1789.

It was clear then as it is now, that the Declaration of Independence stood only for the proposition that the American colonists, as Englishmen, had the same rights to self-determination and self-government as their British kinsmen. The Founders of course provided for future amendments to their work, but Taney and his Court were considering this legal question in 1857.

Taney’s Court also investigated whether the Constitution itself had changed the status of black people so as to make them part of the American political and legal community. Taney noted that as the Preamble declared that the United States was formed “by the people” – which was those who were members of the different political communities in the several States forming the United States. Taney concluded that as most States, North and South, had long distinguished between blacks and whites in terms of social and legal rights, and the Constitution itself implicitly distinguishing between the races in its Migration and Importation clause (permitting the abolition of the slave trade after 1808) and the Fugitive Slaves clause, black people were simply not intended as part of “the people” described in the Constitution.

As Taney reviewed federal statutes to further divine the Founders’ minds in 1789 and what they considered “the people of the United States,” he found two federal laws passed within a few years of ratification. One was the first naturalization law of 1790, which provided that only “free, white persons” could become citizens and therefore this was the political community. The other was the first militia law of 1792, which required the enrollment of every “free, able-bodied white male citizen.”

Though one could contest Chief Justice Taney’s interpretations at that time, eminent historian Carl Brent Swisher wrote in his well-respected biography of Taney that his decision was based upon an “accurate portrayal of relations between the two races in communities where both lived in considerable numbers” at the time it was written.

Thus, investigating this important question in 1857, Chief Justice Taney concluded that people of African descent were not citizens of the United States, and therefore the Dred Scott case did not fall under federal jurisdiction. To rule otherwise, Taney warned, “would require that the Court give to the words of the Constitution more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.”

Such a “liberal construction” would exceed the Supreme Court’s authority.

President-elect Lincoln instructed his party stalwarts to either avoid what would become the Washington Peace Conference chaired by former-President John Tyler, or if in attendance to refuse any peaceful compromise as it would dissolve Republican party unity.

The Conspiracy Which Brought on War

“On February 2, 1861, Hon. Stephen A. Douglas in a letter published in the Memphis Appeal, wrote of the Republican leaders as follows:

‘They are bold, determined men. They are striving to break up the Union under the pretense of serving it. They are struggling to overthrow the Constitution while professing undying attachment to it and a willingness to make any sacrifice to maintain it They are trying to plunge the country into a cruel war as the surest means of destroying the Union upon the plea of enforcing the laws and protecting public property.’

Shortly after Douglas wrote this letter Senator Zachariah Chandler of Michigan wrote a letter to Gov. Austin Blair which proves the guilty conspiracy of the men determined on war. Virginia had solicited a conference of States to see if some plan could not be devised and agreed upon to prevent war and save the Union.

Chandler wrote Blair that he opposed the conference and that no Republican State should send a delegate. He implored the Governor to send stiff-necked delegates or none and added these sinister words: ‘Some of the manufacturing States think that a war would be awful; without a little blood-letting this Union will not be worth a curse.”

(The Conspiracy Which Brought on War, S.A. Cunningham, Confederate Veteran, Vol. XXIV, No. 10, October 1916, pg. 436)

In mid-April 1861, President Abraham Lincoln himself raised an army – which only Congress may accomplish – for the purpose of waging war against South Carolina. The United States Constitution, Article III, Section 3 states that “Treason against the United States shall consist only in levying war against them, or in adhering to their Enemies, giving the Aid and Comfort.” Lincoln had sworn to defend and uphold the Constitution, a document better understood by the North Carolina governor.

No Troops from North Carolina

“Mr. Lincoln took his seat as President on March 4, 1861. He did not receive an electoral vote in any Southern State and out of a popular vote of 2,804,560 only 1,857,610 were cast for those electors favorable to him. He carried but 16 of the 33 States then in the Union. He was inaugurated as president without having received a majority of the popular vote either of the States or the people.

An attempt by President Lincoln to reinforce the US garrison at Fort Sumter in the harbor of Charleston, South Carolina, was resisted by the Confederate forces under General Beauregard, and on April 14, 1861, after a bombardment lasting thirty-six hours, the fort surrendered.

On the next day, April 15, President Lincoln issued his proclamation calling on the several States to finish their quota of 75,000 troops “to suppress combinations too powerful for the law to contend with.”  The same day, Secretary of War Simon Cameron of Pennsylvania, telegraphed North Carolina Governor John W. Ellis: “Call made on you tonight for two regiments of militia for immediate service.”

Reclining on his couch in the executive office, a mortal disease robbing him of his life’s blood, Governor Ellis received the dispatch and at one replied:

“Sir: I regard the levy of troops made by the Administration for the purpose of subjecting the States of the South, as in violation of the Constitution and a gross usurpation of power. I can be no party to this wicked war upon the liberties of a free people. You can get no troops from North Carolina.”

Governor Ellis at once issued his proclamation calling the Legislature to meet in special session. On its assembling, the Legislature issued a call for a convention of the people and authorize the enrollment of 20,000 volunteers.”

(An Address on the Services of General Matt W. Ransom, William H.S. Burgwyn, delivered in the North Carolina Senate Chamber before the Ladies Memorial Association and citizens, May 10, 1906)

Scourging Republicans from the Temple of Freedom

As the Democratic party split into North and South factions in early 1860, it paved the way for the new, sectional Republican party — comprised of former Whigs, abolitionists, transcendentalists, and anti-Catholic Know-Nothings — to triumph in November with a 39% plurality. Aware of the extreme danger Republicans posed to the Union, rational Southern men traveled northward to alert their Democratic brethren.

One voice was William L. Yancey, born at Warren County, Georgia but educated at Williams College in northwestern Massachusetts, where he likely absorbed that State’s tradition of threatening secession from the 1789 union should that State’s equality in the federation be threatened. He relocated to Elmore County, Alabama in 1837 and eventually represented his district in the United States House of Representatives.

Aware of the extreme danger to the Union should the Democratic party fragment in 1860, he joined “Southern men of all parties who came north in an effort to arouse the masses to the danger of the situation.” He was then prevailed upon to make an extended campaign from Memphis to Boston, speaking to many audiences.

In a speech at Nashville on August 14, 1860 and published in the Nashville Union and American shortly afterward:

“Yancey denied that he was a disunionist per se; but declared that in the event of a Republican victory, “I hope to God there will be some man or set of men, whom Providence will rear in our midst . . . that there will be some great Washington [to] arise who will be able to scourge them from the temple of freedom, even if he is called a traitor – an agitator, or a rebel during the glorious process.”

(Source: The Secession Movement: 1860-1861, Dwight L. Dumond, The MacMillan
Company, 1931, pg. 110)

In April 1878, former-President Jefferson Davis prepared a letter to be read at the laying of the cornerstone of the Macon, Georgia monument to Southern dead. He wrote “Should it be asked why, then, build this monument? The answer is, they [the veterans] do not need it, but posterity may. It is not their reward, but our debt. Let the monument teach . . . that man is born for duty, not for expediency; that when an attack is made on the community to which he belongs, by which he is protected, and to which his allegiance is due, his first obligation is to defend that community . . . Let this monument teach that heroism derives its luster from the justice of the cause in which it is displayed, and let it mark the difference between a war waged for the robber-like purpose of conquest and one to repel invasion — to defend a people’s hearths and altars, and to maintain their laws and liberties.”

“Who Owns These Monuments?”

“An address on “Who Owns These Monuments?” delivered by Dr. Joseph Grier of Chester, South Carolina at the dedication of the Richburg monument on May 7, 1939, best sums up the issue of responsibility.

“Whose monument is this? He said, “It is the United Daughters of the Confederacy’s because it is their labor of love, representing a long period of loyalty, devotion and sacrifice, culminating in the erection of the splendid memorial.

Secondly, it is the community’s, because it will stand by the roadside for centuries in the same place and all may see it and draw inspiration from it.

Thirdly, it belongs to the Confederate soldiers whose names ate inscribed on it, because it is erected in their honor.

And Fourthly, to God, because patriotism and devotion to duty and willingness to sacrifice are a vital part of religion, and as we feel the impact of these things, we are swept toward God.”

(A Guide to Confederate Monuments in South Carolina . . . Passing the Silent Cup, Robert S. Seigler, SC Department of Archives and History, 1997, pg. 21)

President Jefferson Davis’ message to the Third Session of the Provisional Congress of the Confederate States at Richmond, Virginia, July 20, 1861 (excerpts):

“Commencing in March last, with an affectation of ignoring the secession of the seven States which first organized this Government; persisting in April in the idle and absurd assumption of the existence of a riot which was to be dispersed by a posse comitatus; continuing in successive months the false representation that these States intended offensive war, in spite of conclusive evidence to the contrary . . . the President of the United States and his advisors have succeeded in deceiving the people of those States into the belief that the purpose of [the Confederate] Government was not peace at home, but conquest abroad; not the defense of its own liberties, but the subversion of those of the people of the United States.”

Under cover of [an] unfounded pretense that the Confederate States are the assailants, that high functionary, after expressing his concern that some foreign nations “had so shaped their action as if they supposed the early destruction of our National Union was probable,” abandons all further disguise, and proposes “to make this conflict a short and decisive one,” by placing at the control of the Government for the work at least 400,000 men and $400,000,000. The Congress, concurring in the doubt thus intimated as to the sufficiency of the force demanded, has increased it to a half a million of men.

These enormous preparations in men and money, for the conduct of a war on a scale more gigantic than any which the world has ever witnessed, is a distinct avowal, in the eyes of civilized man, that the United States are engaged in a conflict with a great and powerful nation; they are at last compelled to abandon the pretense of being engaged in dispersing rioters and suppressing insurrections . . . and are driven to the acknowledgement that the ancient Union has been dissolved.

In 1781 Great Britain, when invading her revolted colonies, took possession of the very district of country near Fortress Monroe, now occupied by troops of the United States. The houses then inhabited by the people, after being respected and protected by avowed invaders, are now pillaged and destroyed by men who pretend that the victims are their fellow-citizens.

Mankind will shudder to hear the tales of outrage committed on defenseless females by soldiers of the United States now invading our homes; yet these outrages are prompted by inflamed passions and the madness of intoxication. But who shall depict the horror with which they will regard the cool and deliberate malignity which, under pretext of suppressing an insurrection, said by themselves to be upheld by a minority only of our people, makes special war on the sick, including the women and the children, by carefully devised measures to prevent their obtaining the medicines necessary for their cure.

The sacred claims of humanity, respected even during the fury of actual battle, by careful diversion of attack from the hospitals containing wounded enemies, are outraged in cold blood by a government and people that pretend to desire a continuance of fraternal connections . . . The humanity of our [Southern] people would shrink instinctively from the bare idea of waging a like war upon the sick, the women, and the children of the enemy.”

(Messages and Papers of the Confederacy, 1861-1865, Volume I, James D. Richardson, editor, US Publishing Company, 1906, excerpts, pp. 118-120)

Admiral Raphael Semmes (1809- 1877) was a Naval Academy graduate, prewar lawyer and remarkable naval strategist who quite-nearly destroyed the US merchant marine with his devastating commerce raiding tactics. A frequent critic of the New England mind and character, he saw the Yankee as “ambitious, restless, scheming, energetic, and has no inconvenient moral nature to restrain him from the pursuit of his interests, be the path ever so crooked. In the development of material wealth he is unsurpassed.” Below, he describes President Jefferson Davis’ path after departing Richmond in 1865.

Gibbon’s Long-Haired Barbarian

“[President Davis] moved soon to Charlotte, in North Carolina, and in a few weeks afterward he fell into the hands of the enemy. The reader knows the rest of his history; how the enemy gloated over his captivity; how he was reviled, and insulted, by the coarse and brutal men into whose power he had fallen; how lies were invented as to the circumstances of his capture, to please and amuse the Northern multitudes, eager for his blood; and finally, how he was degraded by imprisonment, and the manacles of a felon!

His captors and he were of different races – of different blood. They had nothing in common. He was the “Cavalier,” endowed by nature with the instincts and refinement of the gentleman. They were of the race of Roundheads, to whom all such instincts and refinements were offensive.  God has created men in different moulds, as he has created the animals. It was as natural that the Yankees should hate Jefferson Davis, as that the cat should arch its back, and roughen its fur, upon the approach of the dog.

I have said that the American war had its origins in money, and that it was carried on throughout, “for a consideration.” It ended in the same way.

The “long-haired barbarian” – see Gibbon’s “Decline and Fall of the Roman Empire” – who laid his huge paw on Jefferson Davis, to make him a prisoner, was paid in money for the gallant deed.  A President of the United States had degraded his high office, by falsely charging Mr. Davis with being an accomplice in the murder of President Lincoln, and offered a reward for his apprehension; thus gratifying his malignant nature, by holding him up to the world as a common felon.”

(Memoirs of Service Afloat During the War Between the States, Raphael Semmes, LSU Press, 1996 (Original 1868) excerpt pp. 817-818)

In an effort to forestall a Republican “Force Bill” designed to bring reconstruction horrors back to the postwar South, fourteen spokesmen that included Zebulon Vance, Robert Stiles and Bernard J. Sage undertook to explain the Solid South to what may be termed the New North. In April 1890 they published a symposium “Why the Solid South? Or Reconstruction and its Results,” designed to appeal to the self-interest of the North’s business class and a very clear recapitulation of what Reconstruction thus far “had cost in money, public morale and cultural retardation.”

An American Chamber of Horrors

“Hilary Herbert of Alabama, who served as editor, expressed . . . in a preface: “Its object is to show to the public, and more especially to the businessmen of the North, who have made investments in the South, or who have trade relations with their Southern fellow citizens, the consequences which once followed an interference in the domestic affairs of certain States by those, who either did not understand the situation or were reckless of results.”

There followed factual histories of Reconstruction in each of the ex-Confederate States, including West Virginia and Missouri, which also had suffered from the fraud, repression and vicious partisanship of the postwar settlement. All in all, it is one of the most dismal stories ever told, unrelieved by a single ray of light, unless a revelation of how much people can endure and how they will struggle to attain their hopes even in extremis be such.

Governor Vance of North Carolina in a particularly mild and philosophic chapter pointed out that during what was supposed to be a moral and political rebirth “the criminals sat in the law-making chamber, on the bench and in the jury-box, instead of standing in the dock.” It has become the fashion nowadays to regard Reconstruction as a kind of chamber of horrors into which no good American would care to look, but Governor Vance reminded his readers that no portion of our history better deserves study “by every considerate patriot.”

From the comparatively uneventful story of North Carolina’s experience, the chronicle moves on to the wild saturnalia of South Carolina, where amid riotous spending of public funds the State House was turned into a combination of saloon and brothel. Yet the ordeal of South Carolina was matched by that of Louisiana, where in four years’ time the incredible Warmoth regime squandered an amount equal to half the wealth of the State.

“Corruption is the fashion,” Governor Warmoth, an ex-soldier who had been dishonorably discharged from the Federal army, remarked with laudable candor. “I do not pretend to be honest, but only as honest as anybody in politics.”

(The Southern Tradition at Bay: A History of Postbellum Thought, Richard M. Weaver, George Core/M.E. Bradford, editors, Regnery Publishing, 1989, excerpts pp. 330-332)

The prewar national dominance of the North eventually gave rise to those who thought that economic and political measures were not sufficient to put the South on a par with the North. They saw that the only way the South could rid itself of subservience to the North was to leave the Union, and do so with the Founders’ Constitution.  The South’s attempts to reduce tariffs had been increased in 1842, and in 1846 with the help of a Southern president and secretary of the treasury, forced through Congress the Walker Tariff which was so low as to be practically revenue only.  Additionally, President John Tyler’s vetoes of a national bank were upheld by Southern votes in Congress.

Northern commercial interests were determined to reclaim their government subsidies and establish national banking, with Lincoln and his new party a convenient vehicle to permanent national dominance.

Paying Tribute to the North

“There were other methods by which the profits from the cotton crop found their way into Northern pockets. Since two-thirds of the cotton crop went to England, the freight charges on its transportation across the sea amounted to a large sum.  Although the river boats of the South were generally Southern-owned and Southern- built, the South never engaged in the building or operating of ocean-going ships, principally because capital could more profitably employed in agriculture.

Most of the cotton sold was carried on coastwise ships to New York, and the great part transshipped from that place to England. All the coastwise ships and most of the ocean-going shipping was Northern-owned and consequently the freight charges went into Northern pockets. In 1843 this amounted to nearly a million dollars. In addition the insurance costs while the cotton was in transit were generally paid to Northern firms.

Not only did the cotton growers pay “tribute” to the North through their exports, but through their imports as well. The imports to the South came through Northern ports; the exports of the South amounted to two-thirds the total of the United States but her direct imports were less than one-tenth. The freight charges to New York and Boston, the tariff duties, and the cost of transportation on coastwise vessels to the South all added to the cost of merchandise.

In the hard times of the forties, Southern economists were prone to find the explanation for their distress in the “tribute” paid to the North. They came to believe that the economic progress of the North depended on this “tribute,” and epitomized their opinion in the phrase “Southern wealth and Northern profits.”

By the phrase “operation of the federal government” the South meant bounties to New England fisheries, internal improvements in the North such as harbors, roads, canals, and public buildings, tariff duties, and deposits of government funds.”

(The Old South: The Geographic, Economic, Social, Political and Cultural Expansion, Institutions and Nationalism of the Antebellum South, R.S. Cotterill, Arthur H. Clark Company, 1939, excerpts pp. 192-199)

In the first Congress under the United States  Constitution, Josiah Parker of Virginia attempted to insert a clause in the Tariff Bill to levy a ten dollar tax on every slave brought into this country on foreign ships, and especially those of New England.  Parker was supported in this by two other Virginians, Theodoric Bland and James Madison.  In a March 1790 Virginia petition to Congress, the slave trade was denounced as “an outrageous violation of one of the most essential rights of human nature.”

In an unclean bargain to extend the slave trade until 1808, the commercial interests of New Hampshire, Massachusetts and Connecticut allied with South Carolina and Georgia rice planters – while Virginia strenuously protested. The slave traders of New England continued their nefarious traffic until the eve of the Civil War.

Virginia’s Efforts to Abolish the Slave Trade

“Despite Virginia’s failure to secure the immediate suppression of the foreign slave trade, her sons were active in their efforts to restrict its growth and at the earliest possible moment to drive the slave ships from the seas.

“ . . . James Madison [declared] . . . By expressing a national disapprobation of that trade it is hoped we may destroy it, and so save ourselves from reproaches and our posterity from the imbecility ever attendant on a country filled with slaves.”

In his message to Congress, at its session 1806-07, Mr. Jefferson, then President, brought to the attention of that body the fact that under the Constitution the time was at hand when the African slave trade could be abolished, and urged a speedy enactment of such a law. He said:

I congratulate you, fellow-citizens, on the approach of a period at which you may interpose your authority constitutionally to withdraw the citizens of the United States from all further participation in those violations of human rights which have so long been continued on the unoffending inhabitants of Africa, and which the morality, the reputation and the best interests of our country have long been eager to proscribe.”

[Later], In his message to Congress, December 5, 1810, President [James] Madison declares: “Among the commercial abuses still committed under the American flag . . . it appears that American citizens are instrumental in carrying on the traffic in enslaved Africans, equally in violation of the laws of humanity and in defiance of those of their own country.”

(Virginia’s Attitude Toward Slavery and Secession, Beverly Munford, L.H. Jenkins, 1909, excerpts pp. 33-35)