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.

The antebellum idea of compensated emancipation for slaves never gained traction as the North would not agree to help fund the repatriation of Africans’ they themselves had grown wealthy importing to the Americas for 100 years or more. Abraham Lincoln was an avid proponent of colonization once his armies overran the South and created refugees, knowing the North would not accept them flooding northward. Lincoln’s Caribbean colonization schemes are mentioned below and further detailed in the soon-to-be-released “Rather Unsafe for a Southern Man to Live Here: Key West’s Civil War,” by Bernhard Thuersam.  www.shotwellpublishing.com.

Emancipation and Colonization

Hugh Talmadge Lefler and Albert Ray Newsome well-explained antebellum views toward slavery in their History of North Carolina (Chapel Hill, 1954). They wrote that slavery was the most serious antebellum controversy between North and South with people in both sections criticizing it as a moral, economic and social evil. But importantly, the United States Constitution recognized those held to labor and left the States with complete authority over the question within their own borders. Though every Northern State took action to begin gradual emancipation by 1804 – with many selling their slaves southward – no Southern State followed suit because of economic, social and racial considerations.

Lefler and Newsome wrote that “Many Southerners opposed slavery and realized its dangerous possibilities, but most of the early Southern opposition to the slavery was conditioned upon the “antislavery” idea of gradual emancipation to owners, and colonization to Africa or elsewhere. The colonization plan, sponsored by various manumission societies, proved impractical, though Liberia on the African coast was begun as a result of a few thousand Negroes being colonized there by the joint efforts of these societies and acts of Congress.”

The question of colonization was on the mind of Abraham Lincoln once his 1861 invasion destroyed Upper South plantations and produced numerous black refugees.  It was Lincoln’s early intention to emancipate by decree through constitutional amendments and compensating owners – but this failed to gain support in his fractious party.

Author Michael J. Douma has written extensively of Lincoln’s colonization plans and noting that “Historians have long known that in the summer of 1862 Lincoln announced his intention to negotiate with foreign powers concerning the colonization of freedmen abroad.” For the next two years federally-funded initiatives arose to settle freedmen in Chiriqui [Panama] and Haiti – in addition to the British Honduras, Guiana and Dutch Surinam. These talks were quite serious and continued even after the war, anticipating the transport of freedmen to these islands as laborers.

The Danes also expressed interest in colonizing unwanted contrabands to work their plantations on St. Croix, now the US Virgin Islands. In 1862 Seward signed an agreement with the Danes to take all captured aboard slave ships in the Atlantic to St. Croix to work as plantation labor despite Danish acknowledgement that workers on the island would not find conditions much different from previous slavery, but they would be technically “free.” To facilitate the process of removal the Lincoln authorized Danish ships to sail down the US east coast to recruit freedmen. The Danish minister viewed South Carolina as a highly fertile recruiting ground which was seconded by Secretary of State Seward. The Dutch were also fascinated with freedmen and actively sought them as labor for their colony of Suriname on South America’s northeast coast.

Lincoln and Seward were not the only proponents of colonization as they were ably supported by leading Republicans Charles Sumner, Francis Blair, Preston King and Benjamin Wade. Though supportive before 1863, all became aware of the value of black troops used to invade the South as white volunteers became hard to find or had to be paid astronomical financial bounties to enlist. Few black men stepped forward and many had to be coerced, but by war’s end the colonization to the Caribbean regained speed.

After the carnage and devastation experienced by both sides in early July 1863, the silence of the guns on July 4^th allowed Northern soldiers the opportunity to view the result of battle. They quickly discovered the depth of the local farmers’ patriotism as the latter saw an opportunity to profit from the soldiers’ misery.

Sharp Gettysburg Farmers     

“Most of the thrifty, compulsively orderly farm families of German ancestry had, until now, viewed the sectional conflict with indifference, a struggle over issues that were foreign to their interests. When, after two years, the war finally intruded itself upon their lives, it entered with a destructive force few parts of the North had yet experienced. For miles about, their carefully tended fields had been stripped of laboriously built post and rail fences, all the greyed wood having gone to fires or barricades.

There was not a grazing animal to be seen. The low stone walls dividing the properties in the area, products of countless plowings by generations of frugal farmers, had been broken down by shot and shell. Once rich fields wheat and grain had been trampled to worthlessness by masses of farm-boys turned soldiers who could fully appreciate the extent of the damage they were doing. The ground itself was furrowed and scarred by the wheels of caissons and gun carriages. Once symmetrical orchards had been made incongruous; some trees had been reduced to stumps while on others fractured limbs with crumpled dead leaves hung limply.

Regardless of what high principles the Union soldiers may have been fighting for on their soil, they were being regarded by some of the ruined farmers as the source of financial devastation, and they were not anxious to comfort the soldiers in any way.

One officer of a New York regiment complained that ‘a well-to-do farmer near us refused us straw for our men . . . not a man or woman in the vicinity offered a hand to help or drop of milk for the poor sufferers.’ A Northern surgeon said ‘I have yet to see the first thing brought in for the comfort of the wounded. Some farmers brought in some bread which they sold for 75 cents a loaf. The brave army that has defended this State surely deserves better treatment.’

The morning after the epic Little Round Top battle a committee of farmers confronted a Northern major of the 155^th Pennsylvania and demanded payment for straw taken for field hospitals. They were driven away with threats of arrest ‘for their disloyalty as well as their inhumanity.’ Perhaps the meanest offenses were being committed by the local farmers who removed the handles and buckets from their wells to prevent the soldiers from reaching water.

What particularly offended a Northern artillery colonel was the hundreds of people who had come “in their wagons to see the sights, to stroll over the ground and gaze and gape at the dead and wounded.”

(Debris of Battle: The Wounded of Gettysburg. Gerard A. Patterson. Stackpole Books, 1997, pp. 53-55)

The American South could not have become the destination for Africans enslaved by their own people without the ships of the Portuguese, Spaniards, French, British – and New Englanders. The latter had become a notorious smuggling center by 1750 as it surpassed Liverpool in the outfitting of slave ships in the infamous rum triangle.

It can be accurately stated that Britain’s Navigation Acts after the Seven Years’ War were aimed directly at New England smugglers and their African-West Indian trade, which helped bring on the American Revolution.

New England’s Black Ivory

Well-before the American Revolution, New England had engaged in smuggling goods to the other colonies and West Indies in violation of British law. This traffic left little for British merchants to import into the colonies and led Parliament to keep a watchful eye on its New England colonies. Author Reese Wolfe in his 1953 “”Yankee Ships” wrote:

“Shipbuilding, especially for New England’s triangular trade for African slaves, was sufficiently profitable for the shipbuilders of the Thames district to meet in London in the winter of 1724-1725 and formally complain to the Lords of Trade: “. . . the New England trade, by the tender of extraordinary inducements, has drawn over so many working shipwrights that there are not enough left to carry on [our] work.”

Linked inseparably with New England’s ventures south to the West Indies was its brisk trade in rum and what they were in the habit of calling black ivory. For the West Indies trade was a three-cornered affair hinging on rum, slaves and molasses.

Like so many momentous occasions in history, the start of the slave trade had been an offhand sort of occurrence. A Dutch privateer found itself with twenty Negroes taken from a Spanish ship and, not knowing what to do with them, dropped anchor in the river at Jamestown in 1619, a year before Plymouth Rock. The Negroes were offered cheap as laborers, and the Virginia settlers decided to trade tobacco for them. The swap was made and the Dutch sailed away, leaving behind them a cancerous growth that was to bring the parent body close to death before the disease was arrested.

Meanwhile, the Virginians did not call them slaves; as late as 1660 Virgnia court records still referred to Negroes as indentured servants. The New Englanders had Indian slaves as early as 1637, and a more or less formal business developed, with traders nabbing Indians along the banks of the Kennebec River in Maine and selling them into slavery up and down the coast. It was the black ivory from Africa, however, that turned the trick in New England’s West Indies trade and established Southern slavery on a solid and enduring footing.

The mechanics of the all-important trade worked like this: molasses was brought to New England and made into rum; the rum, highly-prized among the native Negroes on the west coast of Africa, brought its own price among the drinkers, a price that included any of their relatives or friends who might have the bad judgement to be lying about, and the resultant human cargoes were disposed of profitably in Boston, Newport and on south. Or most of the way south. Foreign ships for the most part maintained the supply in the deep South.

Not all the West Indies rum was drunk by Negroes. A flourishing local trade in fur was conducted with the Indians by the extremely profitable exchange of a few bottles of cheap rum or whisky for the entire season’s catch of its drunken owner. New England rum, it is generally agreed, had more to do with the destruction of the Indian tribes on the eastern seaboard than all the wars in which they were engaged put together.”

(Yankee Ships: An Informal History of the American Merchant Marine, Reese Wolfe, Bobbs-Merrill Company, 1953, pp. 42-44)

Perhaps in anticipation of emancipation, in 1862 the constitutional convention in Illinois proposed in Article XVII that “No Negro or mulatto shall migrate or settle in this State; No Negro or mulatto shall have the right of suffrage or hold any office in the State; The general assembly shall pass all laws necessary to carry into effect the provisions of this article.”

Emancipation Explained

“As incident to the war of 1861 “and as a fit and necessary war measure” in September 1862, was issued a paper which (with a sequel 100 days later) is called “proclamation of emancipation.” By this in portions of the country called rebellious, slaves were made free, unless by the 1^st of January 1863, said communities ceased to rebel. Slave ownership was to be the reward of loyalty, slave abolition the penalty of rebellion.

This might be translated: “Negroes shall continue to be slaves to their masters if only their masters will be slaves to us. Let us have in peace the jobs which are in sight and your slaves may reap in peace your harvests, taxed only by our tariffs. We will let you have your slaves if you will let us have your freedom.”

After this offer had been made and rejected, who had the right to say that the South was fighting to preserve slavery, or Lincoln for the slave’s freedom? As in the South construed, the motive was not to free the slave but to enslave the free.

In October 1863, Lord Brougham (an abolitionist ab initio) referring to this proclamation said: “Hollow we may well call it for those who proclaimed emancipation confess that it was a measure of hostility to the whites and designed to produce slave insurrection from which the much enduring nature of the unhappy Negro saved the country.”

(Brilliant Eulogy on Gen. W.H. Payne from Good Old Rebels Who Don’t Care, Leigh Robinson, Southern Historical Society Papers, Vol. XXXVI, R.A. Brock, ed., 1991, Broadfoot Publishing, pp. 328-331)

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)

By the end of 1941 over 800 tanks and 873 combat aircraft had been delivered to Russia. In May 1942 Stalin’s Foreign Minister Molotov arrived in Washington to sign a mutual aid agreement with Roosevelt for $1 billion of war materiel.

When the Future of Mankind Was at Stake

“Entire factories have also been exported to the Soviet Union. Among them were a tire plant, an aluminum rolling mill, and two pipe-fabricating mills. Plants have also been built or were under construction for the manufacture of wall board, nitric acid and hydrogen gas. A block-signal system designed to increase the carrying capacity of existing facilities was installed on Soviet railways. Various projects for the provision of electric power were also approved by the US government.

Under Lend-Lease, General Electric and Westinghouse developed a “power-train” which proved to be extremely effective in putting idle Russian plants to work. As soon as local utilities are functioning again, the train moves on to “spark” another area. Some sixty-odd trains have been supplied and the Soviets have put them to good use.

Both factories and power trains fitted into the scheme of helping the Soviets to help themselves. It took ingenuity and imagination and guts to fulfill the needs of our Soviet ally during those grim days when the future of mankind was at stake.”

(Lend-Lease is a Two-Way Benefit, Francis Flood, National Geographic Magazine, June 1943, pp. 506)

The Republican party of Maryland had come to power in 1896 advocating political virtue and responsible leadership. As in other States, this party went right to work in erecting barriers to the Democrat party ever regaining power and diluting their voter strength. In Baltimore, city wards were “renumbered and regrouped in order to assure maximum Republican ascendancy.” Republicans also repealed the Eastern Shore law which denied the traditional assignment of one senator from the east, thus permitting two from the West where Republicans were firmly in control. It took only several years of Republican political virtue for the State’s voters to return the Democrats to power in 1899.

Republican Political Virtue in Maryland

“Even more offensive to the political reform element was the record of political legerdemain of the Republican leaders both in the city and in the State governments. Gov. Lloyd Lowndes personally endeavored to fulfill campaign promises of an honest administration, but his efforts were nullified by chicanery and fraud on the part of his Republican associates. Foremost among these was Congressman Sidney E. Mudd of the Fifth Congressional District who in 1896 while Speaker of the House of Delegates, had extended his influence over the counties of Southern Maryland and, corralling the Negro vote there, had quickly become one of the leading Republican bosses.

Although well-educated, his attitude toward political morality was cynical and can best be exemplified by his own definition of an honest man as “a bastard who will stay bought.”

The worst Republican scandal arose over fraudulent census returns. While serving in Congress in 1900, Mudd had sponsored the appointment of a group of census enumerators for his district and, it was alleged, had intimated to them the type of returns he expected. One of Mudd’s ardent henchmen made certain that census lists for several counties were padded with names secured from tombstones and similar sources. Children aged five and six were listed as day laborers and schoolteachers so that the Federal Census of 1900, insofar as it applied to Southern Maryland, enhanced the influence of Mudd’s bailiwick and gave the Republicans there a sizable number of non-existent voters.”

(Arthur Poe Gorman: A Biography, John R. Lambert, LSU Press, 1953, pg. 273-274)

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)

North Carolina’s General Pender

At Gettysburg on July 2^nd General William Dorsey Pender’s division assaulted the Northern position at Seminary Ridge with great success despite suffering heavy losses. Near sundown as Pender encouraged his men to continue pressure on the enemy, he was hit in the thigh with a shell fragment and forced to relinquish command to Gen. James H. Lane.

In too much pain to mount his horse, Pender was taken by ambulance to a nearby field hospital while his division’s assault subsided. It is said that this near rout of the enemy inspired the following day’s famous frontal assault on Cemetery Ridge.

Recuperating in a hospital at Staunton, Virginia two weeks later, Gen. Pender’s leg began hemorrhaging due to a severed artery which could not be repaired, and amputation followed. The General lived for only a short time after, passing on July 18^th.

Devastated by the loss of such an able commander, General Robert E. Lee remarked: “If General Pender had remained on his horse half an hour longer, we would have carried the enemy’s position.”

It was said that Pender became a devout Episcopalian early in the war which helped fuel his disgust with the invading Northern armies which he referred to as “drunken rabble and unprincipled villains.”

Though a native of Edgecombe County, North Carolina, in the 1870’s Pender County, North Carolina was named in his honor. His epitaph reads: “Patriot by nature, soldier by profession, Christian by faith.”

(Confederate Generals of North Carolina, Joe A. Mobley, History Press, 2011)